Taking Life Imprisonment Seriously:In National and International Law

TAKING LIFE IMPRISONMENT SERIOUSLY in National and International Law

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TAKING LIFE IMPRISONMENT SERIOUSLY SERIOUSLY

TAKING LIFE IMPRISONMENT

IN NATIONAL AND INTERNATIONAL LAW

by

DIRK VAN ZYL SMIT

KLUWER LAW INTERNATIONAL THE HAGUE / LONDON / NEW YORK

Published by Kluwer Law International, P.O. Box 85889, 2508 CN The Hague, The Netherlands [email protected] http://www.kluwerlaw.com Sold and distributed in North, Central and South America by Kluwer Law International, 101 Philip Drive, Norwell, MA 02061, USA kluwerlaw @ wkap.com In all other countries, sold and distributed by Kluwer Law International, Distribution Centre, P.O. Box 322, 3300 AH Dordrecht, The Netherlands

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ISBN 90-411-1772-5 © 2002 Kluwer Law International Kluwer Law International incorporates the imprint Martinus Nijhoff Publishers. This publication is protected by international copyright law: All rights reserved. No part of the material protected by this copyright notice may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without written permission from the copyright owner. Printed and bound in Great Britain by Antony Rowe Limited.

TABLE OF CONTENTS

Acknowledgements List of Tables

ix xi

CHAPTER 1 - STUDYING LIFE IMPRISONMENT 1. What is a life sentence? 2. A brief historical introduction 3. Justifying and limiting punishment a) Prohibitions on cruel, inhuman and degrading punishments b) Human dignity c) Rehabilitation d) Liberty, legality and due process 4. Punishment in context 5. The structure of this book

1 1 4 7 1 10 12 14 16 17

CHAPTER 2 - THE UNITED STATES OF AMERICA 1. The current position 2. Historical background a) The colonies and the new republic b) A new penal vision c) Implementing the new vision d) Consolidation and restriction 3. The 1970s and the modern era a) Life sentences for drug offenders b) Life without parole c) 'Three strikes and you are out' 4. Life imprisonment and the Constitution 5. Juveniles 6. Indirect life sentences for the dangerous sane? 7. Conclusion

20 20 29 29 33 37 42 49 51 54 58 62 71 73 76

CHAPTER 3 - ENGLAND AND WALES 1. The current position 2. Historical background a) Early alternatives to the death penalty b) Indeterminate preventive sentences

78 78 84 84 85

v

Table of Contents c) Life imprisonment and the abolition of the death penalty 3. The new system in operation 4. Contemporary life imprisonment: so what has changed? a) Imposing life prior to the Human Rights Act 1998 (i) Mandatory life sentences for murder (ii) Discretionary life sentences (iii) Automatic life sentences b) Implementing life (i) Discretionary and automatic life sentences (ii) Mandatory life sentences (iii) Juveniles 5. Human rights for lifers as the way forward? 6. Conclusion

87 92 96 97 97 105 108 112 112 117 124 128 131

CHAPTER 4 - GERMANY 1. The current position 2. Historical background 3. The purpose of imprisonment and the life sentence 4. The constitutional challenge 5. The impact of the 1977 decision of the Federal Constitutional Court 6. Further constitutional decisions 7. Abolition as the (constitutional) alternative? 8. Resurgent punitiveness? 9. Conclusion

135 135 139 143 145 150 152 155 161 164

CHAPTER 5 - INTERNATIONAL CRIMINAL JUSTICE 1. The current position 2. Punishment in international law 3. The International Law Commission a) Arguments against life imprisonment b) Arguments for life imprisonment 4. Building on the debate of the International Law Commission 5. Life imprisonment and international Realpolitik a) Life imprisonment as automatic substitute for the death penalty? b) Releasing lifers c) The tribunals in practice 6. The International Criminal Court: a principled compromise? a) Restricted use of life imprisonment b) International penalties and national laws c) Enforcement of sentences 7. Conclusion

167 167 167 171 173 174 176 177 180 183 185 188 190 191 192 196

CHAPTER 6 - TAKING LIFE IMPRISONMENT SERIOUSLY? 1. Introduction

197 197

VI

Table of Contents 2. Severity and proportionality 3. Life sentences for habitual offenders? 4. Dangerousness and risk as limits on proportionality 5. Dangerousness tamed? 6. Life imprisonment for the most severe crimes? 7. Human dignity 8. Practice 9. Conclusion

198 200 201 204 207 212 214 217

BIBLIOGRAPHY

218

TABLE OF CASES

233

INDEX

237

vii

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ACKNOWLEDGEMENTS

A comparative study of any aspect of criminal justice requires access to good libraries, congenial colleagues to explain the pitfalls of local systems and funders who are prepared to support the author for extended periods in the countries where he is researching. I have been blessed with assistance of all these kinds in each of the three countries on which I have chosen to focus in my endeavours to understand life imprisonment. My sincere thanks to all the individuals, funding bodies and institutions mentioned below, as well as many others who helped along the way. The Max Planck Institute for Foreign and International Criminal Law in Freiburg im Breisgau provided the base and the Alexander von Humboldt Foundation the funding for my first steps in German penal law. It was also here in 1991 that I wrote my first paper on life imprisonment. It was published as "Is life imprisonment constitutional? The German experience", 1992 Public Law, 263-278. In much revised form this article formed the basis for Chapter 4 of this book. In 1997, generous sabbatical leave from the University of Cape Town allowed me to dedicate the whole year to working on life imprisonment. Nine months were spent as a Fulbright-funded Research Fellow at New York University School of Law. For the remaining three months financial support from DAAD enabled me to work as a visiting professor at the Humboldt University in Berlin, where I taught a specialist seminar devoted entirely to life imprisonment. In the course of the year, I not only collected material on life imprisonment in the United States of America but also reflected on the place of life imprisonment in the newly emerging international criminal justice system. A paper on this topic was published as "Life imprisonment as the ultimate penalty in international law. A human rights perspective", (1999) 10 Criminal Law Forum, 5-54. It formed the core of Chapter 5 of this book. Finally, in 2001 I had the opportunity to return to the question of life imprisonment when a new half-time chair took me to the School of Law at the University of Nottingham for the first six months of the year. Here I was able to research the section on England and Wales and to begin to draw the material for the various jurisdictions together. This process has been completed in Cape Town. At the University of Cape Town, as at each of the institutions at which I did the primary research, numerous librarians have been prepared to assist me in finding and checking the disparate collection of references that make up this book. I have also had the excellent research assistance of Ricky Rontsch in this final phase.

IX

Acknowledgements A number of colleagues read and commented on the manuscript as it neared completion: Estella Baker, Neil Boister, Frieder Diinkel, Douglas Husak, James Jacobs, Solly Leeman, Nicola Padfield and Esther Steyn have all suggested detailed improvements. I learnt much from them and from others who commented on my earlier writings on the subject. One other person deserves special thanks. For a decade Betine van Zyl Smit has tolerated my obsession with arcane details of the law governing life imprisonment and my complaints about the difficulties of describing them. While pursuing her own academic career and other interests, she has read and corrected not only the final draft of this manuscript but also many of my earlier efforts. I am deeply grateful to her. Dirk van Zyl Smit Cape Town November 2001

x

LIST OF TABLES

Table 1: USA: Prisoners Serving Life Sentences by Selected Characteristics as at 30 September 1992.

22

Table 2: USA: Prisoners Serving Life Sentences or Sentences of 20 Years or more as at 1 January for the Years 1989 to 1999.

24

Table 3: USA: Average of Years Served by Lifers who Exited the Prison System in 1997.

26

Table 4: England and Wales: Persons Sentenced to Life Imprisonment and the Offences 1960 to 1999.

80

Table 5: England and Wales: Population of Life Sentence Prisoners as at 30 June for the Years 1989 to 2000.

82

Table 6: England and Wales: Life Sentenced Prisoners First Released from Prison on Life Licence and Average Time Served for the Years 1990 to 2000.

83

Table 7: Life Sentences Imposed in the States of the former (western) Federal Republic of Germany 1977 to 1999.

136

Table 8: Prisoners Serving Life Sentences in the States of the former (western) Federal Republic of Germany 1977 to 1999.

137

XI

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CHAPTER 1

STUDYING LIFE IMPRISONMENT

1. WHAT is A LIFE SENTENCE? Sentencing convicted offenders to life imprisonment gives notice that the State is prepared to exercise an extremely severe power to punish. It is the solemn public pronouncement that henceforth the State will have the legal authority to curtail drastically some of the most basic rights and liberties of sentenced offenders for the rest of their natural lives. The full span of those lives may be spent in prison, with all the restrictions that flow from incarceration. Offenders sentenced to life imprisonment have no absolute right ever to be released from prison. Even if they are released, they will usually remain permanently subject to supervision in the community and to possible recall to prison. If not released, or if released and subsequently recalled, offenders sentenced to life imprisonment may be detained until they die in prison. There can be little doubt about the importance of the sentence of life imprisonment in modern penal systems. In most countries that have abolished the death penalty it is the most severe sanction at the disposal of the State. Yet, as Leon Sheleff observed in his path-breaking work, Ultimate Penalties, published in 1987, while there have been major studies on almost every aspect of penal policy, there has been very little analysis of the ideas underpinning life sentences. He emphasised that, in the English speaking world at least, "[no] real comprehensive attempt has ... been made to address the penological, moral, legal and constitutional issues raised by life imprisonment".1 This book is a modest attempt to begin to do just that. Ideally, the point of departure for an in-depth examination of life imprisonment would be a clear definition of the penal sanction to be studied. One approach that could be followed is that adopted in penal statistics, which usually include under life imprisonment only those cases where an offender has been formally sentenced to a term of life imprisonment by a court. However, there are at least two difficulties with this approach. The first major difficulty is that imprisonment until death, for a full or natural life as it is often described, may be achieved in other ways than the formal imposition of a life sentence. An offender may be sentenced to a fixed number of years that far exceeds a normal life span. Alternatively, an offender may be detained indefinitely without a life sentence formally being passed. If the focus is narrowed to the penal system, one may choose to leave aside those cases where indefinite detention does not follow from a Leon Shaskolsky Sheleff, Ultimate Penalties, Capital Punishment, Life Imprisonment, Physical Torture, Columbus: Ohio State University Press, 1987, 17.

1

Chapter 1 criminal conviction. These are cases where a person has not actually committed an offence but is found to suffer from a mental illness and is considered a danger to society, or where a person has committed an offence but is found to lack criminal capacity. Various systems have procedures for indeterminate preventive detention of convicted offenders. In practice these may be equivalent to life sentences for offenders whose offences may not themselves justify the imposition of a life sentence but who are thought to present a significant further danger or risk to society. In some countries preventive detention is imposed by having a clear 'second track' in terms of which, instead of sentencing such offenders, other 'measures' are applied to detain them for long, often indefinite, periods. While such measures outside the conventional sentencing system are certainly not unproblematic, they can be separated from life imprisonment as punishment. In other countries there is only a single track and both punishment and incapacitation are achieved by a single sentence, often of life imprisonment, that is longer than would be justified solely by the offence committed.2 However, this distinction does not always hold in practice, for even in the 'second track' countries a life sentence may be imposed and implemented with an explicitly incapacitatory objective. Also countries that formally adopt a single track may have additional preventive techniques for dealing with 'dangerous' offenders, for example, by imposing a further period of detention after their initial determinate sentences have been served. This too may amount to de facto life imprisonment. The problem with these different modes of detention is that it is not always obvious whether a life sentence is being imposed as punishment or whether one is dealing with some measure that is merely a non-penal form of indeterminate, compulsory treatment, imposed with no intent directly to penalise the offender. Moreover, the intent of those imposing a sentence or measure may not be the same as the offender's perception of it.3 The second major difficulty is that even the formal imposition of sentences of life imprisonment does not mean that offenders will automatically be incarcerated for the remainder of their lives. As Lord Mustill has noted in the English context of the mandatory sentence of life imprisonment for murder: "The sentence of life imprisonment is also unique in that the words, which the judge is required to pronounce, do not mean what they say. Whilst in a very small minority of cases the prisoner is in the event confined for the rest of his natural life, this is not the usual or intended effect of a sentence of life imprisonment, ... But although everyone knows what the words do not mean, nobody knows what they do

For a clear distinction between single and double track systems of dealing with dangerous offenders with criminal capacity, see Jorg Kinzig, Die Sicherungsverwahrung auf dem Prufstand, Freiburg: Max-PlanckInstitut fur auslandisches und internationales Strafrecht, 1996. See George P. Fletcher, Basic Concepts of Criminal Law, New York: Oxford University Press, 1998 for a discussion of the motive versus impact distinction in deciding whether something is punishment or treatment. 2

Studying Life Imprisonment mean, since the duration of the prisoner's detention depends on a series of recommendations ... and executive decisions ... ." 4 One could ignore this reality and simply point out that the imposition of a life sentence signals that the State has formally declared that it has the power to detain the offender for life. While this declaration is important, it would be naive to stop there. It is obvious that there is likely to be a massive difference in practice between, on the one hand, a sentence of life that allows, either as a result of an indication given by the judge or the statutory law, an offender to be considered for release after two or three years and, on the other hand, a sentence to life imprisonment accompanied by a recommendation that the offender be detained for a full life-time, that is, a law decreeing 'life without parole' LWOP in American penological jargon. Even in the latter case, of course, the person sentenced to life imprisonment might still be released as a result of commutation of sentence or executive pardon. It is theoretically possible that an investigation of life imprisonment could focus only on those instances where a sentence of life imprisonment is both imposed and carried out in full. Such an inquiry would, however, lose the important insight that what differentiates the life sentence from determinate sentences is that a prisoner serving life imprisonment does not have a guaranteed date of release. This uncertainty may have an impact on how the prisoner experiences the prison term. It also means that complex and varying processes for considering the possible release of lifers become an important part of the implementation of sentence. These processes must be studied both from this 'internal' point of view and in order to understand the influence that the possibility of release has had on how penal policymakers and the wider public regard life imprisonment. In this book the definitional issue is approached indirectly by examining how it plays itself out in various jurisdictions. Each substantive chapter begins by taking the State at its word and examining the laws currently allowing the imposition of life sentences and, as far as possible, how often they are imposed. It also describes the tangle of laws governing the treatment and release of lifers and seeks to get a snapshot of patterns of implementation, so that one has an idea of the effect of the life sentence in practice. However, in each instance one must remain alert to the possibility that the imprisonment for life of convicted offenders may be achieved by forms of indefinite detention other than formally pronounced life sentences, as well as by fixed-term sentences that are so long as to amount to life imprisonment in practice. I hope to show how the somewhat murky definition of life imprisonment and the complexities of its implementation are linked with the survival of often inconsistent justifications for its continued existence as the 'ultimate penalty' in many jurisdictions and as a very severe penalty in most others. Understanding and critically examining these, sometimes unspoken, justifications and limitations and how they relate to the continuation of existing practices of life imprisonment is the key focus of this book. R v Secretary of State for the Home Department, Ex parte Doody [1994] 1 AC 531 (HL) at 549H-550B. 3

Chapter 1 2. A BRIEF HISTORICAL INTRODUCTION Before proceeding to consider a framework that could be applied to a critique of life imprisonment, it is worth examining briefly the somewhat serendipitous early history of life imprisonment and the prominence to which it rose in Western penal theory towards the end of the eighteenth century. The latter is particularly important, as it provides a point of departure for understanding early national developments in all three countries to which special attention will be paid. Historians of imprisonment have pointed out that life imprisonment is not a modern invention. Indeed, life-long imprisonment has a history that closely parallels that of the prison itself. Initially prisons were used primarily, but not exclusively, for detention before trial. Life imprisonment, like the fixed term of imprisonment, was not a key form of punishment in early times, but it was not unknown. 5 From the disapproval of life imprisonment expressed by Roman jurists it is clear that it was in use in the ancient world.6 The gradual introduction of life imprisonment as a formal punishment in continental Europe in the late Middle Ages had much to do with the rise of the parallel criminal jurisdiction of the Catholic Church. This jurisdiction, which initially applied only to the clergy but which was gradually extended to lay persons, generally stipulated milder punishments than its secular equivalents. For example, life imprisonment to be served in the monastic prisons could be imposed as a substitute punishment, where the secular courts would routinely impose the death penalty. However, little systematic thought was given to why this should be done. In secular late mediaeval law there was a similar development. There are numerous examples in the judicial records of European cities in what are today Germany, Italy and Switzerland, in which provision was made for the occasional imposition of life imprisonment.7 Limited recognition was granted to life imprisonment as a punishment in German common law of the period.8 A gradual increase in the importance of life imprisonment, linked to the increased significance of imprisonment generally, came about from the early eighteenth century onwards. With the rise of mercantilism came a general revision of penalties in an attempt to deal with the social disruption of war and the need to create social discipline amongst the increasing numbers of landless and rootless people. The rise of prison can be dated to this period. As early as 1587 the Dutch penal reformer, Dirk Volkhertz Coornert, commented that vagabonds were more frightened of life imprisonment than the short Edward M. Peters points out that in the period of the later Roman Empire and in Mediaeval Europe imprisonment generally, and life imprisonment in particular, as a form of punishment was used to an extent that undermines schematic histories, which would see sentences of imprisonment as a product of mercantilism and the systematic thought of the European Enlightenment: Edward M. Peters, "Prison before the Prison" in Norval Morris and David J. Rothman (eds.), History of the Prison, New York: Oxford University Press, 1995, 21. Ibid., 21. Klaus Laubenthal, Lebenslange Freiheitstrafe: Vollzug und Aussetzung des Strafrestes zur Bewcihrung, Lubeck: Schmidt-Rombild, 1987, 53-54. Klaus Friederick Rohl, Uber die Lebenslange Freiheitsstrafe, Berlin: Duncker and Humblot, 1969. 4

Studying Life Imprisonment moment on the gallows.9 The Rasphuis prison that he pioneered in Amsterdam became a model for prisons across Europe. The idea of imprisonment as an alternative to the death penalty was taken up by penal reformers of the eighteenth century Enlightenment too. Predominant amongst them was the Italian nobleman, Cesare Beccaria, whose book, Dei Delitti e Delle Pene,10 was translated into most European languages and widely read throughout Europe and North America. Beccaria is best remembered for his opposition to the death penalty and for his general approach to punishment. His oft-quoted view was that penalties should not be excessive and that their duration should be inflexibly specified in advance so that the would-be offender would know what to expect and would act accordingly to avoid the penalty. From this view one might have deduced that Beccaria was opposed to indeterminate prison sentences and by extension to life imprisonment. That was not the case. In a section of his book, separate from the part where he made the case for determinate prison sentences, Beccaria argued for the replacement of the death penalty by life sentences, which, he argued, would be perceived by potential offenders as holding worse terrors than the death sentence." In Beccaria's words: "A great many men contemplate death with a steady, tranquil gaze; some out of fanaticism, some out of vanity, which attends us again and again to the very edge of the grave, some out of a last desperate effort to free themselves from life and misery; but neither fanaticism nor vanity can subsist among the fetters and the chains, under the rod, or under the yoke or in the iron cage, where the desperate man rather begins than ends his misery."12 The logic of Beccaria's primary argument, for sentences that were proportionate and determinate and against any form of executive discretion, did find favour amongst other Enlightenment figures who saw it as a crucial element in constructing a penal system that would limit the powers of the old absolutist State. The new proportionate sentences were in principle the minimum term that was required for purposes of deterrence and were designed to be served in full, but the reformers were faced by the difficulty that, if life sentences were carried out in this way, the amount of time actually served by offenders Gerard de Jonge, "Lebenslanglich: Ein europaisches Problem braucht eine europaische Losung" in Komitee fur Grundrechte und Demokratie (eds.), Lebenslange Freiheitsstrafe: Ihr geltendes Konzept, ihre Praxis, ihre Begrundung, (First Public Hearing 14 to 16 May 1993), Sensbachtal: Komitee fur Grundrechte und Demokratie, 1993,71-84. Cesare Beccaria, Dei Delitti e Delle Pene, 1764, published as Of Crimes and Punishments (translated by Jane Grigson), collected with Alexandra Manzoni, The Column of Infamy, London: Oxford University Press, 1964. Michel Foucault emphasises that, in order to establish what he identifies as the "Rule of Lateral Effects", Beccaria focused on the reaction of the public to perpetual slavery of the life prisoner rather than on inflicting pain on the offender himself. In Foucault's view this was one of the unique aspects of the type of penality that was a product of Enlightenment thinking: Michel Foucault, Discipline and Punish: The Birth of the Prison, London: Allen Lane, 1977, 87. Beccaria (n. 10)47. 5

Chapter 1 who had committed similar offences would vary widely. Early release by executive intervention, on the other hand, would also be regarded as undesirable, as the new approach was designed to reduce if not eliminate the 'royal' prerogatives of mercy. These issues were raised in the contemporaneous debate13 leading to the introduction of the revolutionary French Criminal Code of 1791. In order to make a complete break with the past a committee of the Constitutional Assembly proposed in the draft Penal Code of 23 May 1791 the abolition of the death penalty for common law offences14 and of "peines perpetuelles"', that is, of life sentences, and their replacement by determinate terms of imprisonment. This was to be done, so the Committee argued, because such sentences were incompatible with the new state of civilisation and in any event were incapable of rehabilitating offenders. The more conservative majority of the Constitutional Assembly did not fully accept these arguments. Whilst welcoming the idea of fixed proportionate sentences they insisted that the reasoning of the Committee was too 'philosophical', that is, that it was informed by an overly idealistic vision of the reformability of most serious offenders and that it underestimated the necessity for the death penalty in order to guarantee the maintenance of social order.15 The compromise embodied in the Code, which was finally enacted as the Penal Code of 1791, was that the death penalty was retained, albeit for a reduced number of offences, but that the abolition of life imprisonment was confirmed. Henceforth the maximum term of imprisonment would be 24 years. The new Code did not last long. It was modified in 1795 and replaced in 1810 by the Code Penal Napoleon, which reintroduced several previous forms of punishment including life sentences and again granted a degree of flexibility to the courts.16 Astute modern commentators, such as Thorsten Sellin17 and Hugo Adam Bedau,18 have noted the paradox that Beccaria, who has continued to be regarded as a humane penal reformer, should have supported a form of life imprisonment, particularly one that was to be carried out with extreme brutality. However, they do not explain why Beccaria adopted such apparently inconsistent views. Whatever the explanation, there are indications that outside France absolute monarchs found support in Beccaria's views for

For a masterful summary of the complexities of this process, see Lieven Dupont, Beginselen van Behoorlijke Strafrechtsbedeling, Antwerp: Kluwer, 1979. Even this Committee could not bring itself to argue for the abolition of the death penalty for 'tyrants' or other persons who threatened the stability of the nation, i.e. for political offenders. Jacques-Guy Petit, "Politiques, modeles, imaginaire de la prison (1790-1875)" in Jacques-Guy Petit et al. (eds.), Histoire des Galeres, Bagnes et Prisons Xllle - XXe siecles, Toulouse: Bibliotheque historique Privat, 1991, 116-117. It also returned to the courts the discretion to impose penalties within the framework of maxima and minima. Ibid., 119; Dupont (n. 13) 137. Thorsten Sellin, "Beccaria's Substitute for the Death Penalty", in Simha F. Landau and Leslie Sebba (eds.), Criminology in Perspective Essays in Honour of Israel Drapkin, Lexington, Mass.: Lexington Books, 1977, 3. Hugo Adam Bedau, "Imprisonment vs. Death: Does avoiding Schwarzschild's paradox lead to Sheleffs dilemma?", (1990) 54 Albany Law Review, 483. 6

Studying Life Imprisonment introducing life sentences of a degree of harshness that offenders could not realistically hope to survive for a long period.19 As Beccaria's ideas on punishment generally influenced early debates about sentencing in the United States of America, in England and in the territories of the states that were to become modern Germany, his support for life imprisonment is an important factor to be considered as the evolution of the life sentence in those countries is discussed in the following chapters. That there was some tension between Beccaria's overall penal theories on strictly proportional punishments and his support for life imprisonment is an early indication that the justification of life sentences faces difficulties when it forms part of a system of determinate sentences, in which the duration of sentences is fixed at the time of their imposition. 3. JUSTIFYING AND LIMITING PUNISHMENT Before beginning to study the justifications for life imprisonment directly it is necessary to consider the limits on what are regarded as justifiable forms and applications of punishment generally. These limits too are not fixed points of departure but have themselves evolved over a long period and have been articulated with varying degrees of force in different countries and in different times. a) Prohibitions on cruel, inhuman and degrading punishments Appropriate justifications for limitations on punishment have been debated by jurists and philosophers since ancient times, and the notion that there should be a rule of constitutional law that forbids certain forms of punishment has been explicitly stated, at least since the English Bill of Rights of 1689 outlawed cruel and unusual punishments.20 Such words were themselves embedded in particular historical contexts. It appears that the English Bill of Rights was concerned primarily with prohibiting disproportionately heavy punishments rather than with outlawing specific forms of punishment.21 This was also the concern a century later of the French Declaration of the Rights of Man of 1789, which provided that "the law should impose only such penalties as are absolutely and evidently necessary".22 Essentially the same wording as that of the English Bill of Rights was incorporated in the Eighth Amendment to the Constitution of the United States of America. The original intention of the drafters of these words is not entirely clear. Scholarship suggests that in the United States the drafters of the Constitution intended to give these words a

Sellin (n. 17). 1 Wm. and Mary 2d Sess. (1689). Anthony F. Granucci, '"Nor cruel and unusual punishments inflicted': The original meaning", (1969) 57 California Law Review, 860. William A. Schabas, The Death Penalty as Cruel Treatment and Torture, Boston: Northeastern University Press, 1996, 16. Article 8 of the Declaration des droits de l'homme et du citoyen, 26 aout 1789.

7

Chapter 1 somewhat broader scope, intending also to prohibit excessively cruel punishments.23 However, what these punishments might be, remained undefined, as the US Supreme Court did not consider the interpretation of these words at all in the first 80 years of its existence. In the late nineteenth century the court did consider whether various forms of carrying out the death penalty infringed the "cruel and unusual" prohibition, but it did not consider whether capital punishment or life imprisonment, or indeed any other specific form of punishment, might be unconstitutional. In 1909 in the case of Weems v United States24 the prohibition on "cruel and unusual punishments" was given new life by the Supreme Court. At issue was a punishment of 15 years' imprisonment of which at least 12 years would have to be served in irons and with hard labour, the so-called cadena temporal, imposed in the US dependency of the Philippines. In that case the majority of the Court held that the prohibition was directed both against punishments that were inherently incompatible with the standard and "against all punishments which, by their excessive length or severity, are greatly disproportioned to the offences charged".25 On the basis of the former test the US Supreme Court for the first time struck down a punishment that the legislature had mandated as inherently unconstitutional. As we shall see in the next chapter, the concepts of both inherent incompatibility and constitutionally unacceptable disproportionality of sentence were to play crucial roles in the development of American punishment jurisprudence. This jurisprudence was slow in developing. Only in 1955, in the case of Trop v Dulles26 did the US Supreme Court again strike down a punishment, in this instance loss of citizenship, as inherently incompatible with the requirements of the prohibition on cruel and unusual punishments. In his judgment Chief Justice Warren commented that, as had already been noted in Weems, the interpretation of the Eighth Amendment could change over time since it was related to "the evolving standards of decency that mark the progress of a maturing society".27 While the American jurisprudence was slowly emerging, laws outlawing certain types of punishment were being introduced throughout the world. In the first instance they took the form of prohibitions on 'cruel and unusual punishments', or variations on these words in the form of the prohibition of torture, and of 'inhuman or degrading punishment and treatment', in various combinations in constitutions in many countries of the world. By 1993 Bassiouni could report that "the right to be free from torture and cruel and degrading treatment or punishment is provided for in at least eighty-one constitutions".28 Granucci (n. 21). 217 US 349 (1909). At 371. The words in quotation marks were derived from an earlier judgment of the US Supreme Court (O'Neil v Vermont 143 US 323 (1891)), quoted with approval by Justice McKenna in Weems. 356 US 86 (1958). At 101. M. Cherif Bassiouni, "Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and the Equivalent Protections in National Constitutions", (1993) 3 Duke Journal of Comparative and International Law, 263. 8

Studying Life Imprisonment To these should be added those modern constitutions where the words are not used explicitly but have been held to be incorporated by interpretation. In the German constitutional law, for example, the words are regarded as implicit in the core constitutional protection of human dignity,29 while in India they have been derived from due process provisions.30 Implicit in all these prohibitions of certain forms of punishment was the inclusion of the proscription of punishment that was disproportionately severe. As the South African Constitutional Court recently concluded after extensive comparative analysis of constitutional jurisprudence in a number of countries: "The concept of proportionality goes to the heart of the inquiry as to whether punishment is cruel, inhuman or degrading, particularly where... it is almost exclusively the length of time for which an offender is sentenced that is in issue."31 Since World War II the prohibition of certain kinds of punishment has been given additional prominence by its incorporation in most general modern human rights instruments both internationally and regionally. At the international level the key general pronouncement was the United Nations Universal Declaration of Human Rights,32 which provides in article 5: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." Article 7 of the International Covenant on Civil and Political Rights33 uses identical words. Very similar words are found in article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms:34 "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." The omission of the word cruel in this context is generally regarded as of no significance as the term 'inhuman' is synonymous with the term, 'cruel'. Both the American Convention on Human Rights35 and the African Charter on Human and Peoples' Rights36 use the same adjectives as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights to describe the forms of punishment and treatment they outlaw. Both the virtual universality of the prohibition of torture and cruel, inhuman and degrading punishment and treatment in national legal systems and the place of the prohibition in the key international human rights instruments make it a cornerstone of modern international human rights law. The prohibition is both a form of customary BVerfGE 1, 348; Theodor Maunz-Durig, Grundgesetz Kommentar, Munich: Beck, 1991, 15-16. Schabas(n. 21)46. S v Dodo 2001 (1) SACR 594 (CC) at 614d per Ackermann J. Universal Declaration of Human Rights, G.A. Res. 217A (III), 10 December 1948, 3 U.N. GAOR Supp. (No. 11A) 71, U.N. Doc. A/810, 7 (1948). International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) 52, U.N. Doc. A/6316 (1967). Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222. Article 5(2): Organization of American States, American Convention on Human Rights, Nov. 22, 1969, O.A.S. Treaty series No. 36. Article 5: Organisation of African Unity, African Charter on Human and Peoples' Rights, adopted June 27, 1981, entered into force Oct. 21, 1986, OAU Doc. CAB/LEG/ 67/3 rev. 5. 9

Chapter 1 international law and an element in one of the conventions, charters or covenants to which most countries in the world have acceded. Scholarly writing has recognised this and holds that the prohibition is a non-derogable international human right.37 The recognition of the existence of an abstract standard for judging whether a particular form of punishment is entirely prohibited, or whether its imposition must be limited to a particular class of crime or a particular application, does of course not mean that this standard does not require further development. In rare instances international bodies themselves offer some assistance. Thus, for example, the Committee of Ministers of the Council of Europe has developed recommendations on sentencing for its member states.38 Key amongst these is the proposition that: "Whatever rationales for sentencing are declared, disproportionality between the seriousness of the offence and the sentences should be avoided."39 This proposition underlines the importance of the second leg of the prohibition on inhuman and degrading punishments, namely that punishment which is not inherently prohibited may still be fundamentally unacceptable if imposed for the commission of a crime for which it would be disproportionate.40 It emphasises also that there is a particular form of the proportionality limit that applies to punishment, which is related directly to the offence committed by a blameworthy offender, in addition to a more general prohibition on disproportionate State interference with individual rights. b) Human dignity Commonly the prohibition on cruel, inhuman and degrading punishments is complemented in the first instance by examining related rights contained in similar instruments. In the case of capital punishment, for example, this is often done by applying the prohibition in combination with the right to life. It is then argued that unless, or sometimes even if, a specific exception is made for a penalty of death imposed by a Paul Sieghart, The International Law of Human Rights, Oxford: Clarendon Press, 1983, 160. There is indeed only one formal example of attempted derogation at the international level. The United States of America, which acceded to the International Covenant on Civil and Political Rights after that instrument had already come into force, made a reservation to the effect that, for its purposes, the prohibition on torture and cruel, inhuman and degrading treatment and punishment in article 7 of the Covenant should be interpreted similarly to the US prohibition on cruel and unusual punishments. Given the fundamental nature of the prohibition in the Covenant doubts have been expressed whether this reservation has any effect in international law: Manfred Nowak, CCPR Commentary, Kehl: Engel, 1993, 26. See also the comments of the Lawyers Committee for Human Rights, "Statement on US ratification of the CCPR", (1993) 14 Human Rights Law Journal, 126 to the effect that while American constitutional standards are lower than those of art. 7 of the International Covenant on Civil and Political Rights, this is not a ground to opt out of the minimum standards set by that instrument. Council of Europe, "Recommendation R (92) 17 of the Committee of Ministers to member states concerning consistency in sentencing", adopted by the Meeting of the Ministers' Deputies (482nd: 19921019: Strasbourg). Ibid., 13 (Recommendation A 4.). See also Andrew Ashworth, "Towards European Sentencing Standards", (1994) 2 European Journal on Criminal Policy, 7. For further comparative sources, see in general Dirk van Zyl Smit, "Constitutional Jurisprudence and Proportionality in Sentencing", (1995) 3 European Journal on Crime, Criminal Law, and Criminal Justice, 369. 10

Studying Life Imprisonment court following due process of law, the right to life, read with the prohibition of inhuman punishments, together outlaw the death penalty. In the case of life imprisonment the right to life in the narrow sense is not as immediately relevant as in the case of the death penalty. However, all sentences of imprisonment require the consideration of the right to human dignity. This right is closely linked to the right not to be subject to torture or to cruel, inhuman and degrading punishment. Not only has the latter right been regarded as derived from the former in German law but the link is also often drawn in the opposite direction: in the United States of America, where the Constitution recognises the prohibition of cruel and unusual punishments but does not contain an explicit right to human dignity, the Supreme Court has explained that "the basic concept underlying the Eighth Amendment is nothing less than the dignity of man".41 Indeed, for many legal theorists the right to dignity is seen as the foundation of all human rights. It clearly applies to all people but the measures by which it is recognised may vary. Thus, for example, children may need positive support to ensure their human dignity, where adults may be left to their own devices. The particular aspect of human dignity that is of primary relevance for current purposes is clearly the question of under what conditions, if at all, a form of imprisonment can be regarded as being compatible with the human dignity of the prisoner. In general terms a number of international instruments have explicitly drawn the same link between the prohibition of torture and cruel, inhuman and degrading punishment and dignity, on the one hand, and conditions of imprisonment, on the other. Thus article 5(2) of the American Convention on Human Rights combines the two requirements in a single provision: "No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person." The International Covenant on Civil and Political Rights is another good example of a general international instrument that both outlaws certain kinds of punishment and treatment in article 7 and sets general standards for the treatment in article 10. As the Human Rights Committee has commented: "For all persons deprived of their liberty, the prohibition of treatment contrary to article 7 is supplemented by the positive requirement of article 10(1) of the Covenant that they shall be treated with humanity and with respect for the inherent dignity of the human person."42 The important question for current purposes is what this supplementary positive requirement means in the case of those who are being punished by sentences of imprisonment. Part of the answer is to be found in more detailed provisions specifying Trap v Dulles (n. 26) 100. General Comment 20 of the Human Rights Committee (1982) reprinted in (1994) 1-2 International Human Rights Reports, 26. 11

Chapter 1 how prisoners should be treated. At the international level the best-known of these are still found in the 1955 United Nations Standard Minimum Rules for the Treatment of Prisoners, which are designed to ensure a prison regime that safeguards the physical and mental integrity of prisoners.43 They have been supplemented by regional instruments, such as the European Prison Rules,44 the Kampala Declaration on Prison Conditions in Africa45 and also by regional inspectorates, such as the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment and Punishment,46 which develop further requirements for how sentenced prisoners should be treated. These requirements are aimed at ensuring that specific steps are taken by prison administrators. Nevertheless, it is clear that certain types of prison sentences would be outlawed by the rules. For example, a sentence that combined imprisonment with hard labour could, depending on how 'hard labour' was defined, fall foul of the rule that "prison labour must not be of an afflictive nature".47 The question that arises is whether a very long prison sentence, or indeed a life sentence, would infringe these rules, if it were shown that it was inherently or routinely destructive of the physical and mental integrity of prisoners that these requirements seek to guarantee. The answer to this question is largely an empirical one, for there is little dispute that human rights law seeks to guarantee the human dignity of all prisoners, at very least in this limited sense. c) Rehabilitation A more difficult question is whether there is a norm in international human rights law, or elsewhere, that prescribes that prison sentences should be so structured that they allow for the rehabilitation of prisoners and, if so, whether this has any impact on the acceptability of certain types of sentences. In the case of children the answer is clear. The almost universally recognised 48 Convention on the Rights of the Child makes it clear that even

For a discussion of the impact of the Standard Minimum Rules as well as of related United Nations instruments, see Adam C. Bouloukos and Burkhard Dammann, "The United Nations and the Promotion of Prison Standards" in Dirk van Zyl Smit and Frieder Diinkel (eds.), Imprisonment Today and Tomorrow: International perspectives on prisoners' rights and prison conditions, 2nd ed., The Hague: Kluwer, 2001, 756. Council of Europe, "Recommendation No. R (87) 3 of the Committee of Ministers to member states on the European Prison Rules", adopted by the Committee of Ministers on 12 February 1987. Reproduced in Penal Reform International, Prison Conditions in Africa, Paris: Penal Reform International, 1997,93-97. This Committee, the CPT, operates in terms of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. See Malcolm Evans and Rod Morgan, Preventing Torture: A Study of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Oxford: Clarendon Press, 1998. Rule 71(1): Standard Minimum Rules for the Treatment of Prisoners, E.S.C. Res. 663 C (XXIV), 31 July 1957, 24 U.N. ESSCOR Supp. (No.l) 11, U.N. Doc. E/3048 (1957) and 2076 (LXII) (1957). The United States of America is the only major country that has not ratified the Convention on the Rights of the Child. The only other country is Somalia: (2000) 49-50 Human Rights Monitor, 72. 12

Studying Life Imprisonment children who have infringed the law must be treated in a way that will promote their reintegration into society so that they can assume a constructive role in it.49 Important international instruments also place a duty on the State to structure its penal systems with the 'rehabilitation' of sentenced adult prisoners as an objective. Most prominently, article 10(3) of the International Covenant on Civil and Political Rights provides that "[t]he penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation". This is echoed in article 5(6) of the American Convention on Human Rights: "Punishment consisting of the deprivation of liberty shall have as an essential aim the reform and social readaptation of the prisoners." A few national constitutions contain similar provisions. The Constitution of Spain provides that prison sentences shall be oriented towards the re-education and social rehabilitation of offenders,50 while the Constitution of Italy specifies that punishment shall aim at reforming the person upon whom sentence is passed.51 The relatively widespread existence of provisions of this kind does not mean that their interpretations are uncontroversial. On the one hand, it has been argued that the rehabilitative ideal led to the claim that the State had a duty to 'treat' or 'improve' prisoners and that on this basis the State had claimed powers over offenders that exceeded its legitimate powers to punish. This in turn led to the introduction of indeterminate sentences that could be disproportionately severe in effect, even to the extent that the resultant sentence was inhuman and degrading.52 On the other hand, it has been argued that the provisions relating to rehabilitation in international and national law lead to the recognition that prisoners have a positive right to rehabilitation that they can enforce against the State. Such a right has been recognised in both Spanish and Italian law.53 Even where there is no provision on rehabilitation of prisoners in the national Article 40: Convention on the Rights of the Child, G.A. Res. 44/25, 20 November 1989, 44 U.N. GAOR Suppp. (No. 49) 166, U.N. Doc. A/RES/44/25 (entered into force 2 September 1990). See also art. 26.1 of the United Nations Standard Minimum Rules of the Administration of Juvenile Justice, G.A. Res. 40/33, 29 November 1985, 40 GAOR Supp. (No. 53) 206, U.N.Doc. A/RES/40/33 ("The Beijing Rules") which provides: "The objective of training and treatment of juveniles placed in institutions is to provide care, protection, education and vocations skills, with a view to assisting them to assume socially constructive and productive roles in society." Article 25.2 of the Constitution of Spain, in Albert P. Blaustein and Gisbert H. Flanz, (eds.), Constitutions of the Countries of the World, Dobbs Ferry NY: Oceana, 1991. Article 27 of the Constitution of Italy, in Albert P. Blaustein and Gisbert H. Flanz, (eds.), Constitutions of the Countries of the World, Dobbs Ferry NY: Oceana, 1987. Francis A. Allen, The Decline of the Rehabilitative Ideal: Penal Policy and Social Purpose, New Haven: Yale University Press, 1981; Andrew von Hirsch, Past or Future Crimes? Deservedness or Dangerousness in the Sentencing of Criminals, Manchester: Manchester University Press, 1985. For Spain see Jose Cerezo Mir, "Das neue spanische Strafgesetzbuch von 1995", (1996) 108 Zeitschrift fur die gesamte Strafrechtswissenschaft, 657; Julio Barbero Santos, "La reforma espanola en la transition a la democracia", (1978) 1 Revue Internationale de Droit Penal, 63. For Italy see Corte cost. Sentenza, 27 September 1983, nr 274, Foro Italia 1, 2333. 13

Chapter 1 constitution, a right to rehabilitation may be deduced from more general constitutional rights. Thus, in its famous Lebach judgment in 1973 the German Federal Constitutional Court derived a general right to rehabilitation for prisoners from their constitutional right to human dignity and their related right to develop their own personalities:54 The Court explained: "The prisoner should be given the ability and the will to follow a responsible way of life; he should learn to maintain himself in a free society without breaking the law, to grasp its opportunities and to come to terms with its uncertainties ... . As bearer of the guaranteed fundamental rights to human dignity the convicted offender must have the opportunity, after the completion of his sentence, to establish himself in the community again."55 It has been strongly argued that the rights-based approach to rehabilitation does not lead to the conclusion, in the same way as the approach that would emphasise the duty of the State to rehabilitate prisoners, that the need for the 'rehabilitation' of a prisoner is a justifiable ground for imposing or continuing custodial sentences.56 The role of experts in designing programmes and in determining whether they have been successfully completed is of secondary importance. Indeed, the rights-based approach does not mandate 'rehabilitative programmes' for all prisoners, for it recognises that some prisoners do not require such programmes. What is important is that imprisonment should increase prisoners' ability to live law-abiding lives in a free society after release (and not reduce the capacities of those who already have this ability). The rights-based approach stresses the opportunities that should be offered to the offender for self-improvement in prison and the right to take part in civilian life after release from prison as elements of the larger right to human dignity. The controversy surrounding 'rehabilitation' does not mean that it can be disregarded. Although one commentator has suggested that article 10 (3) of the International Covenant on Civil and Political Rights reflects the "outdated modernist views of criminologists of the 1960's",57 the requirement of humane implementation of prison systems that underlies the rights-based version of this ideal cannot be dismissed so easily. However, the very divergent interpretations of rehabilitation can spill over into any inquiry that seeks to test a specific sentence against human rights norms. d) Liberty, legality and due process The right of individuals to liberty that should not be removed without due process of law is clearly a fundamental human right and it is recognised as such in all major human

BVerfGE 35, 202 at 235-6. Ibid. See in particular Edgardo Rotman, "Do Criminal Offenders have a Constitutional Right to RehabilitationT (1986) 77 Journal of Criminal Law and Criminology, 1023. Tomuschat, quoted, but not with approval, by Nowak (n. 37) 185. 14

Studying Life Imprisonment rights instruments. In most instruments it is bolstered by more specific requirements for criminal procedures that must be followed prior to convictions that could produce sentences that would result in accused persons losing their liberty. In examining whether a particular sentence is an acceptable form of punishment the application of the principle of legality is, however, more limited. One may ask, for example, whether the punishment has been duly established by law, for the maxim nulla poena sine lege is part of the wider principle of legality that requires specific legal safeguards for liberty, but of course that is only a preliminary issue. A formal legal provision for the punishment to be imposed will overcome this difficulty. Secondly, one may enquire whether standards of due process were met in the process of establishing the guilt of the accused and of establishing that the sentence concerned is appropriate for the crime of which the accused has been convicted. It has been recognised in the United States of America that such standards of 'super due process' are applicable to the death penalty and echoed in article 6 of the International Covenant on Civil and Political Rights as a means of restricting the use of this particular sentence. However, these procedures do not differ in substance from those that should be applied in any well-run criminal process. For some forms of punishment the requirements of due process present few complications at the stage of implementation. However, sentences of imprisonment are arguably different. Not only does their daily implementation require careful attention to procedural rules in order to ensure the substantive rights of prisoners, but many systems of prison law provide for prisoners to be released before the completion of their sentences, if they meet certain specified criteria. As such provisions affect the liberty of prisoners directly, they require meticulous attention to procedural propriety. This is particularly true of life sentences. As we saw in the discussion of the definition of life imprisonment, it may be argued that some life sentences incorporate both a punitive element and a preventive element. Once someone has been punished, further detention, even if it is part of the same sentence, requires a careful evaluation of whether continued loss of liberty is justified. In this regard a rule such as article 9(4) of the International Covenant on Civil and Political Rights becomes of particular importance: "Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful." Article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and article 7(6) of the American Convention on Human Rights are substantially similar provisions. In all instances they are additional protections for the basic guarantee of liberty and security of the person contained in these instruments. They are therefore of particular significance in analysing whether a sentence, which arguably has been imposed after a procedure that established the guilt of an offender in a way that meets due process standards, is being implemented appropriately.

15

Chapter 1 4. PUNISHMENT IN CONTEXT The discussion thus far has focused on an emerging international discourse that would seek to provide a framework for deciding whether a particular form of punishment is acceptable, either in general or in a particular instance. This does not mean that the punishments that are implemented are a product of the application of such a framework. On the contrary, much modern writing about punishment has been at pains to argue that the forms of punishment actually practised in society are determined, or at least shaped, by wider social and economic forces. In the extreme forms of this approach the discourse about punishment and its limits is seen as mere rationalisation.58 More sophisticated neofunctionalist explanations, most famously that of Foucault,59 have avoided understanding punishment as a simple dependent variable and understood that both the actual implementation of punishment and its surrounding discourse are directly part of the society in which they exist, and that they shape it as well as are shaped by it. Careful historians have added further weight to the insight that public attitudes to punishment may be bound up with social forces in complex ways. In a memorable vignette the Dutch penal historian, Pieter Spierenburg, has described how at a specific historical point the citizens of Dutch cities began to notice the smell of the bodies of executed criminals that were left hanging on the gallows at the city gates and insisted that this practice be changed.60 This change, Spierenburg explains, following Norbert Elias,61 must be understood as part of a deeper civilising process. Spierenburg's concern in anchoring ideas about punishment in this way is not in the first instance to dismiss the thesis that penal practices are the products of rational argument but rather to dispute neo-functionalist theses that punishment is used as a mechanism to achieve specific results. In Spierenburg's view, justifications of and limitations on the form that punishment may adopt, lie much deeper than the public discourses about punishment. At the same time, justifications are not mere smokescreens for the functions that punishment serves in society. One suspects that what Spierenburg has in mind are the 'evolving standards of decency' to which the American Chief Justice Warren referred to in a very different context in the US Supreme Court in the 1950s. A similar, subtle understanding of the relationships between penal discourse, actual penal change and wider social forces has been developed by David Garland.62 In his most recent, wide-ranging analysis of Anglo-American crime control strategies from the 1970s onwards, Garland concludes that, while the strategies he describes have "a certain

See the comment of Georg Rusche and Otto Kirchheimer: "Punishment as such does not exist: only concrete systems of punishment and specific criminal practices exist." Punishment and Social Structure, New York: Columbia University Press, 1939, 5. Foucault (n. 11). Pieter Spierenburg, The Spectacle of Suffering, Cambridge: Cambridge University Press, 1984. Norbert Elias, The Civilising Process, (2 vols.), Oxford: Oxford University Press, 1978 and 1984. David Garland, Punishment and Modern Society: A Study in Social Theory, Oxford: Clarendon Press, 1990. 16

Studying Life Imprisonment congruence, a certain 'fit', with the structures of late modern society",63 they are not inevitable. There are instances where alternative policy choices were possible and are still possible. Garland does not identify in any detail what these choices may be. Nevertheless, the overall approach that he adopts offers exciting possibilities for taking further the analysis of alternatives, while not losing sight of how current penal practices have been shaped by their history and how they are likely to continue to be moulded by the legal structures and wider, ideological and social environments within which they operate. 5. THE STRUCTURE OF THIS BOOK In the study that follows an attempt is made to focus these wider insights about the emergence of modern penal systems on the specific questions raised by life imprisonment. The study seeks to combine a critique of actual practices of life imprisonment, in the light of the general limitations on punishment that are emerging internationally, with a sensitivity to the extent to which debates about life imprisonment have been shaped both by wider social forces and by particular legal and broader public discourses about punishment. As I undertook the research, it soon became clear that it would be over-ambitious to attempt such an analysis on a truly global scale. The problems of the definition alone make it almost impossible to provide the baseline information that would be required. Perhaps even more important, the extent to which life imprisonment is seen as a form of punishment that requires special justification varies enormously from society to society. Where there are national debates amongst lawyers or the wider public, they address different aspects of this complex penalty. These range from a controversy about its total abolition, through discussion of how it can be fairly implemented, to consideration about the steps that can be taken to ensure that lifers are never released. Accordingly, the decision was taken to focus on life imprisonment in three jurisdictions: the United States of America, England and Wales, and the Federal Republic of Germany. In dealing with each of the three jurisdictions the point of departure is a brief description and statistical sketch. At its core is a picture of how often life imprisonment is currently imposed and for what offences this is done. A simple statistic is sought of how many persons sentenced to life imprisonment are actually being detained. This is complemented, as far as possible, by a figure of how long persons sentenced to life imprisonment are actually detained prior to release. In each chapter the overview of current conditions is followed by an historical examination of the emergence of life imprisonment and attitudes to the penalty in the country under consideration. From this point onward the chapters take somewhat different directions. In the United States of America, which is spotlighted in Chapter 2, the focus is on a country where broader issues of life imprisonment are not on the public agenda. The ultimate penalty in most of the country is still the death penalty and debate about it dominates. This is not to David Garland, The Culture of Control: Crime and Social Order in Contemporary Society, Oxford: Oxford University Press, 2001, 201. 17

Chapter 1 say that life imprisonment is not widely used or that aspects of it are not controversial. In particular, life imprisonment for drug-related crimes, life sentences without the prospect of parole for the most serious crimes and 'three-strikes-and-you-are-out' mandatory life sentences for recidivists have all received attention in recent years. The United States Supreme Court too has dealt with the constitutionality of life sentences and therefore has been forced to address wider questions about limitations on punishment. Although its judgments have often been criticised, they provide considerable insights into how life imprisonment is understood in the USA. These critiques begin to reveal alternative choices to the imposition and implementation of life imprisonment that could have been made, had the limitations on punishment contained in the American Constitution been applied more closely to life sentences. In England and Wales, dealt with in Chapter 3, the situation is different as far as penalties for serious crimes are concerned. The death penalty has been abolished and is unlikely to be reinstated. However, as in the USA, there has been no real debate about the acceptability of life imprisonment per se. Controversy about aspects of life imprisonment has been very intensive. It has concerned both the imposition of life sentences and the release of lifers. Of particular interest is that the development of the law in this area has involved both the English courts and the European Court of Human Rights in Strasbourg. This has compelled the explicit consideration in a national jurisdiction of wider international standards on the limitation of punishment, in this instance those contained in the European Convention for the Protection of Human Rights and Fundamental Freedoms. In recent years this process has been accelerated by litigation in England and Europe about highly controversial life sentences imposed on two very young boys, Thompson and Venables, convicted of the murder of a toddler. Since October 2000 English courts have had to test English law directly against the standards of the European Convention. This has already led the courts to intervene to limit legislation on the imposition of life imprisonment on 'dangerous' recidivists and compelled further reflection on the appropriate limits of another aspect of life imprisonment. Chapter 4, which deals with Germany, highlights a legal system in which the death penalty was abolished earlier than in England and where life imprisonment may be imposed only for the most serious offences. In Germany life imprisonment per se has been controversial and its acceptability in terms of constitutional limits on punishment was directly challenged before the Federal Constitutional Court in 1977. However, the Court found that the life sentence was constitutional as long as certain strict criteria were met limiting its imposition and regulating its implementation. The chapter focuses on the working out of these criteria as a model of how life imprisonment could be limited without being abolished. It also sketches the arguments developed by the active German movement for the total abolition of life imprisonment. Chapter 5 does not deal with a national jurisdiction but with the interesting development that life imprisonment has relatively recently become the most severe penalty that can be imposed on individuals in international criminal law. It too begins by sketching the current position and the history of life imprisonment in this area. However, the focus is less on the relatively few instances in which the penalty has been imposed. 18

Studying Life Imprisonment Instead, it is on the ongoing debates in international fora, where those creating new bodies to implement international criminal law have had to develop penal frameworks that take into account directly the limits on punishment contained in international human rights law. These debates have led to the articulation of an extraordinarily wide range of opinions. These range from those who have no difficulty with either the death penalty or life imprisonment as the ultimate penalty for international crimes, through those who would favour life imprisonment only if its imposition and implementation were carefully restricted, to those who are opposed to all forms of life imprisonment in principle. The solutions that have been proposed are, therefore, of particular interest as indications of whether fundamentally different views on life imprisonment can be accommodated in a framework that purports also to meet the standards of acceptable punishment set by the various international instruments that deal with the appropriate limits on punishment. The final chapter, Chapter 6, addresses the last question directly by weighing the sentences of life imprisonment that are imposed for various purposes and implemented in various ways against the standards set by the principles discussed in this introductory chapter. It concludes that most forms of life imprisonment are open to challenges in terms of these principles. It asks why in practice the response to these challenges has been so poor and speculates on what will be required to ensure that they are taken seriously.

19

CHAPTER 2

THE UNITED STATES OF AMERICA

1. THE CURRENT POSITION Examples of virtually every form of life imprisonment are found in the modern United States of America. A sentence may be imposed that allows a prisoner to be considered for release after a minimum period of only one year or less, or it may be a so-called life without parole (LWOP) sentence in which the public pronouncement is that the person is never to be released from prison. There are variations in between: the minimum period may be so long, 40 years or more, that the intended effect of the sentence is life without parole, or the sentence may be combined with a fixed term of years that achieves the same effect. There is no general restriction on the length of prison sentences that can be imposed, either for a single offence or cumulatively, with the result that effective life sentences may be imposed indirectly by imposing a term that is far beyond the normal life expectancy of the offender. Although civil confinement of the sane, merely on grounds of the danger they present to the public, is not allowed, there is the further possibility that forms of indefinite further detention may be ordered after a determinate sentence has been completed by a 'dangerous' offender, thus ensuring that the offender is effectively subjected to a life sentence in this way. Finally it should be noted that life sentences, including life without the prospect of parole, may be, and are, imposed on very young juveniles. There is an extremely wide range of offences that can be punished with life imprisonment, whether the sentence is mandatory or discretionary. There is no closed list of such offences. It would be a major task to list every offence for which the sentence of life imprisonment is a competent verdict in various States as well as in the Federal system. Even the category, 'offence', is variable. There are important examples of a life sentence being imposed, not so much because of the heinousness of the offence that triggers it, but because of a course of conduct in which the last offence, which may itself be relatively trivial, is regarded as sufficient to justify the imposition of a life sentence on a 'career criminal' or someone whose previous conduct demonstrates a 'risk' to the public. There are equally large variations of implementation. On the one hand, some categories of life sentences with short minimum terms attached to them are implemented as if they were relatively short sentences. It is not universally true, however, that prisoners are routinely or usually released on parole when, or shortly after the time at which they become eligible for parole.

20

The United States of America Information on life imprisonment in the United States of America is patchy. What is available is not widely publicised. Nevertheless, it is possible to glean sufficient broadlybased data to give some understanding of the dimensions of the multi-faceted penal form that life imprisonment, as is imposed, directly has assumed. One must bear in mind though, that such figures do not usually include very long fixed-term sentences or the measures imposed on those 'dangerous' offenders who are subject to some form of indefinite preventive detention. The most comprehensive statistical snapshot of prisoners serving sentences of life imprisonment published in the official sources dates from 1992. It is reproduced in Table 1 together with the notes containing caveats that were included in the original version. In spite of these shortcomings, Table 1 still gives a reasonably clear impression of the major categories of offences for which life sentences were then imposed in the reporting units, that is the great majority of States as well as the Federal prison system and the District of Columbia. Although every reporting unit showed some prisoners serving life sentences for murder, there were wide variations when it came to other offences. Thus, for example, 22 States showed no life sentences for drug charges, while a further 13 States showed fewer than 9 prisoners in this category. The importance of life imprisonment as a penalty for murder is underlined by the fact that in 1992 50.7 percent of all prisoners admitted to prison for murder had been sentenced to life imprisonment.1 Of these, 2.7 percent had been sentenced to life without parole. This compares to 2.3 percent admitted on sentence of death in that year.2 The overall percentage of convicted murderers sentenced to life imprisonment has remained more or less constant. However, by 1996 6.4 per cent of all admissions for murder were sentenced to life without parole.3 In 1992, outside homicide (29.4 percent for all forms of homicide), the percentages of offenders convicted of specific offences sentenced to some form of life imprisonment are much smaller. Only for kidnapping (9.9 percent) rape (5.1 percent), other sexual assault (1.7 percent), robbery (1 percent), assault (1.5 percent) and drug offences (1.1 percent) were more than 1 percent of prison admissions for life imprisonment of some form.4 These percentages have remained relatively stable over the period 1989 to 1998.5

National Criminal Justice Reference Service, National Corrections Reporting Program, Washington D.C.: Department of Justice, 1992, Table 1-16. Ibid. National Criminal Justice Reference Service, National Corrections Reporting Program, Washington D.C.: Department of Justice, 1996, Table 1-16. National Criminal Justice Reference Service, National Corrections Reporting Program, Washington D.C.: Department of Justice, 1992, Table 1-16., 24. National Criminal Justice Reference Service, National Corrections Reporting Program, Washington D.C.: Department of Justice, 1989 (Table 1-12), 1990 (Table 1-15), 1991 (Table 1-15), 1992 (Table 1-16), 1993 (Table 1-16), 1994 (Table 1-16), 1995 (Table 1-16), 1996 (Table 1-16), 1997 (Table 1-16), 1998 (Table 116). 21

Table 1: USA: Prisoners Serving Life Sentences by Selected Characteristics as at 30 September 1992. Number serving life sentence

Offense

Male

1st degree murder

Jurisdiction Alabama Arizona Arkansas California Colorado Connecticut Delaware District of Columbia Florida Georgia Hawaii* Idaho* Illinois Iowa Kansas Kentucky Louisiana Maine Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska* Nevada New Hampshire New Jersey New Mexico New York North Carolina

Female

2nd degree murder

Kidnapping

Drug charges

Sex offenses

Other

87 126

2548 739 467 11 275 500 149 397 774

58 24 27 492 12 3 6 10

336 280 6287 386 130 143 313

94 2 4206a

16 11 866a

34 14 a

a

196 61 406a

8 77 140

6 15 21

0 2 2

2 141 51

6 25 257

4767 3236 3 189 551 374 488 562 2158 44 925 3086 153 49 1 166 27 79 903 26 890 156 9033 2171

145 145 0 6 14 17 19 24 72 0 24 107 7 0 52 0 5 31 2 20 9 444 66

2352 2100 153 65 472 311 370 337 602 43 399 1 721 160 NA 572 13 111 358 28 728 137 ' 646

608 NA 2 32 0 0 0 ir 952 0 492 643 0 NA 334 0 64 89 0 58 12 4726 606

169 85 3 13 0 65C 127 27 33 1 0 53 0 NA 4 3 7 53 0 18 0 100 42

23 325 1 3 1 0 2 0 101 0 0 149 0 NA 6 1 0 9 0 22 0 3277 2

970 475 26 64 24 14 0 52 504 0 35 248 0 NA 99 2 1 366 0 21 11 97 719

790 396 22 19 68 1 8d 159 38

23 379 0 NA 203 8 1 59 0 63 5 1 277 22

Have a specific sentence of life without parole Yes Yes No Yes Yes No" Yes Yes Yes No Yes Yes Yes Yes No Nof Yes Yes Yes Yes Yes Yes Yes No8 No Yes Yes No No No No

Number sentenced to life without parole Male Female 685 196 X 995 22 X 95 10

11 11 X 42 1 X 5 0

2332 X 28 174 532 374 X 8 2083 11 389 1 729 1 151 318h 8 X 214 26 X X X X

44 X 3 6 14 17 X X 71 10 66 0 24 0 X 9 2 X X X X

No X X 12 0 0 0 North Dakota 1 13 0 0 X 254 431 No X 11 Ohio* 2935 31 143 1 293 1 089 Yes 87 8 17 52 139 14 Oklahoma 929 62 657 109 2 Yes 17 0 0 Oregon 462 0 0 0 439 23 2324 162 Yes Pennsylvania 1 662 593 0 0 0 93 Yes 0 11 1 5 Rhode Island 83 0 8 0 58 10" 1 144 Nok X X 167 0 South Carolina 1 290 67 1 045 0 Yes 3 4 18 99 12 8 0 South Dakota 99 60 3 X No X 5 132 296 Tennessee 1 246 44 7391 87 31 No X X 1 545 Texas 4 152 X 238 660 85 1731 63 NA Yes NA 4P 1 Utah X 0 0 40 NA 0 Yes NA 14 7 0 0 0 Vermont 7 0 X X 247 No 1248 24 147 1 166 Virginia 25 688 Yes 7 125" Washington 2 2 119 96 588 305 84 20 1 Yes 124 0 West Virginia 254 0 0 6 250 0 10 4 No X X 0 0 Wisconsin 498 0 25 519 0 Yes 4 10 1 00 00 Wyoming 13 0 108 3 83 Yes 11 284 292 Federal Bureau 1 177 41 492 NA 139 of Prisons Source: U.S. Department of Justice: Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics 1992, Washington DC: Government Printing Office, 1993, Table 6.81, 633. (The BJS derived this table from: Corrections Compendium, Lincoln NE: CEGA Publishing, 1993, 7-14). a Individuals convicted of these crimes are sentenced to life as habitual offenders. Lifers include 12 offenders sentenced to life but eligible for parole after 1 day. h However, certain murder offenses are not parole eligible. c Aggravated kidnapping. d Out-of-State compact offenders. e Manslaughter. *g Life without parole ended in 1975, however, there are eight remaining inmates serving life without parole sentences. Parole ineligibility exists as a separate sentencing enhancement, independent of the crime. h For parole ineligibility only. 1 Statute was declared unconstitutional. 'k Includes four in Rhode Island, two from Rhode Island serving out of State, and four from other States serving in Rhode Island. Individuals convicted of these crimes are sentenced to life as habitual offenders. Lifers include 12 offenders sentenced to life but eligible for parole after 1 day. 1 Includes all homicide offenders with life sentences. m Includes both males and females. n Includes 11 death sentences. 0 The Sentencing Reform Act 1984 eliminated parole, therefore any life sentence imposed is, by definition, life without parole. Very few inmates in Bureau of Prison facilities remain under the old system. * In addition to the Endnotes above, which are contained in the official source, there appear to be arithmetical errors in the statistics in each of these rows in the official source.

Chapter 2 Table 2: USA: Prisoners Serving Life Sentences or Sentences of 20 Years or more as at 1 January for the Years 1989 to 1999. Year

Life Sentences

Life without 20 Years or Percent of Total Parole Sentences More Prison Population 88343 1989a 41005 23.4 10370 43961 96921 11 246 1990b 24.1 1991C 44451 105 881 11759 21.9 52054 1992d 125996 22.1 13937 55856 127914 17071 1993e 21.2 1994f 53650 148 026 17446 22.8 64686 163811 17853 1995g 22.6 71917 17280 1996h 181 399 24.3 74804 168 935 21368 22.8 1997 72352 177 197 23758 1998j 23.4 80142 178363 25554 1999k 26.2 Source: Criminal Justice Institute, Corrections Yearbook 1989-1999. South Salem: Criminal Justice Institute, 13, 16, 19, 19, 19, 19, 19, 42, 44, 55, 55. a Totals based on the figures of 41 reporting agencies. The figures for the Federal system were not included. b Totals based on the figures of 40 reporting agencies.The figures for the Federal system were not included. c Totals based on the figures of 44 reporting agencies, including the figures for the Federal system. d Totals based on the figures of 43 reporting agencies, including the figures for the Federal system. e Totals based on the figures of 44 reporting agencies, including the figures for the Federal system. f Totals based on the figures of 45 reporting agencies, including the figures for the Federal system. g Totals based on the figures of 47 reporting agencies, including the figures for the Federal system. h Totals based on the figures of 47 reporting agencies, including the figures for the Federal system. 1 Totals based on the figures of 46 reporting agencies, including the figures for the Federal system. j Totals based on the figures of 49 reporting agencies, including the figures for the Federal system. k Totals based on the figures of 48 reporting agencies, including the figures for the Federal system.

Overall trends in life imprisonment numbers are hard to determine accurately. The most useful source, the Criminal Justice Institute, a private organisation, has for a number of years published information on prisoners serving life imprisonment, including life without parole, and other sentences of longer than 20 years of a large majority of States. The 7999 Corrections Yearbook shows that on 1 January 1999, in the 50 States, the District of Columbia and the Federal system that reported, there were 105 697 prisoners serving life sentences, of whom 25 554 were serving sentences of life without parole. The 7999 Corrections Yearbook records that the overall percentage of prisoners in the reporting States serving sentences of 20 years or more has remained relatively constant at between 21 and 24 percent of the total prison population over the past 11 years.7 Table 2, drawn from this source, shows a persistent increase in overall numbers of lifers and of Criminal Justice Institute, The 1999 Corrections Yearbook, South Salem: Criminal Justice Institute, 2000, 54-55. Ibid. 24

The United States of America other long-term prisoners of all kinds in the system. It should be noted that the increase in the numbers of prisoners serving life sentences roughly parallels the equally large growth in the number of sentenced prisoners in the United States, from 773 919 in 1990 to 1 381 892 at the end of 2000.8 The statistical picture becomes murkier when one searches for information on the length of life sentences actually served. No such figures are published in easily accessible official or commercial sources. An attempt was made to calculate such statistics by studying closely the raw data on prisoners released from prison in the various States in a particular year. Thirty-eight States reported such figures to the official National Corrections Reporting Program for 1997.9 In these States 2 314 lifers were released from prison, compared to 6 160 who were admitted in the same period. Those who were released had served an average of 6.4 years. One cannot regard this figure as an accurate indication of the average term served by offenders sentenced, because it includes all releases, not only those who died in prison, but also those who were transferred to another system, who were released on appeal, who escaped and whose grounds for release are simply unknown. Even more importantly, it excludes those who were not released at all. One must assume that the average period actually spent in prison by persons sentenced to life imprisonment in the United States is higher than 6.4 years, but it is not clear by how much. As the number of prisoners sentenced to life without parole in the system increases one may expect the real terms served to increase as well, but this effect is likely to be noticeable only in the long term. What the statistics do show is that the time served before release varies greatly by offence. Table 3 shows the average terms before release in terms of the offence and the reason for release. The numbers of releases in some of the categories are small, which make averages misleading. However, when homicides and attempted homicides10 are compared to drug offences, one can show that those who received a life sentence for homicide served 10 years before being released11 compared to 3.6 years for those imprisoned for drug offences.

Department of Justice, Bureau of Statistics, Prisoners in 2000, Bulletin NCJ - 188207, . The latest official raw data available at the time of writing. That is, the offences Murder, Attempted Murder, Conspiracy to Murder, Homicide, Voluntary/Nonnegligent Manslaughter, Vehicular Manslaughter, Attempted Vehicular Manslaughter, and Involuntary/Nonvehicular Manslaughter as listed in Table 3. This figure is comparable with the figures of "152 months in 1990, 151 months in 1992, and 146 months in 1994", which were calculated from unpublished statistics by the Bureau of Justice Statistics for the purposes of a comparative study of crime in the United States and in England and Wales for the period 1981 to 1996: See Patrick A. Langan and David P. Farrington, Crime and Justice in the United States and in England and Wales, 1981-96, Bulletin NCJ 169284, Washington D.C.: Department of Justice, 1998, 56. 25

Table 3: USA: Average of Years Served by Lifers who Exited the Prison System in 1997.

•g-o > In s„, 13 JB o•-J5" >, £ £ ^'g >> §C "S C 132

VHen -1H5 S c S O 05° '!/§. o ""Ort

£ 'B/"° o >, o§ es <;> ^2 10 14 lb 8 -

"S3 "o g; ^ g; z ?^ 204 7 4 1

1 -

14b -

1

en ^-j ill4

Offences Homicides

Murder Attempted Murder Murder, Conspiracy Homicide Voluntary/non-negligent Manslaughter Vehicular Manslaughter Attempted Vehicular Manslaughter Manslaughter, involuntary/non-vehicular

Totals Kidnapping Attempted Kidnapping Rape Attempted Rape Statutory Rape Attempted Statutory Rape Sexual Assault Indecent Behaviour with a Juvenile Attempted Indecent Behaviour with a Juvenile

"S 0 CJ. •> *~* DIH tHQ D-« 203 tten &3 (11>• § S

12 15 8 7b-

t(U—i *Q(U £3O 03C^ O, ^ 'o T3" x>S «g S § -. ^ -f « 121 7 1 -

1

5b

-

-

10b

1

lb

-

-

395 21 1 26 10 4 40 8

10 10 14b 9 7 5 5 8

218 6 23 1 1 7 —

12 12 13 12b 12b 12 -

129 6 8 5 -

4 7 11 10 -

3

4

-

-

--

-

ill o o "3 <3 "S ° •2 M ^ S § 3 Z "oJ t* oI-H 342 28 1 22 -

•si ^ "o co ^ C7N 03U en 0 .S Si S 9 suf jj ^» g

*"< b? c^ *^C5 rQ^*»is ^ Total

Average of Total

5 3 -

lb -

742

10

Drug Offences

Robbery Attempted Robbery Unarmed Robbery Forcible Sodomy Aggravated Assault Child Abuse Burglary Attempted Burglary Arson Forgery/Fraud Grand Larceny Petty Larceny Larceny, value unknown Attempted, Larceny, value unknown Receiving Stolen Property Unauthorised use of a vehicle Trafficking in Heroin Trafficking in Cocaine Trafficking in other Controlled Substances Trafficking in Marijuana Trafficking in unspecified Drugs Attempted Trafficking in unspecified Drugs Possession of Heroin Possession of Cocaine Possession of other Controlled Substances Possession of Marijuana Possession of unspecified drugs

100 29 4 4 6 1 47 7 3 3 16 2 1 -

7 4 2 5 6 5b 8 6 12 9 4 26 6b -

17 1 — 2 6 1 -

13 6b 17 10 4b -

14 5 9 6 3 2 2 1

9 2 2 3 3 17 14 9b

5 1

2

21

1 .

2b -

. -

-

1 3 4

21 b 6 9

-

-

1 1

9b c

1 395

8b 4

8

7

33

3

7

3

-

-

-

-

2 1

7 8b

_ -

_ _

2 . .

21 . .

2 512

c 3

4

5

37

2

b

Is) oo

Offences Heroin Violation, unspecified offence Controlled Substance, unspecified offence Totals

-£
"g-g i> I/I § j! n >, 2 C S W 03 j^ g ;>, (D "TO O &o 03 -2 "3 § -a^ ° >>0o 3c <5 X) 21 b

1

2b

03

.S |1 (U c
2b

03 fe O -O3 exn

-

u> *o 0 fe S « M i) O3 'dp( CL TO 03 fj ^ c» W 03 (3 2 -g^tg ~>f-i^ -

-

-

"a> etfMCJ
Total

Average of Total

3 14 6 74 3.5 1018 3.6 930 c 1 1 Escape from Custody 11 b 4 9 4 2 7 5 Weapons Offence 5 2 Attempted Weapons 14 3 Offence Parole Violation 12 3 10 3 _ _ _ _ Habitual Offender 14 5 1 Court Offences 19b c Driving while Intoxicated 2 . Obstruction of Justice 1 lb 2 7 _ _ _ _ Commercialised Vice 1 15 b b 1 Unknown 13 5 2314 Totals and Total Averages of all above 304 12 271 6 6.4 1739 Offences Source: Table compiled by the author based on the raw data of the U.S. Department of Justice: Bureau of Justice, National Corrections Reporting Program 1997, CD 0032 ICPSR 2017, Issued July 2000. a The reasons for exiting the system in this category are: transfer; release on appeal or bond; escape; other; and unknown. b No average is possible since only one person was released; the figure given is the term served by that one prisoner prior to release. c Missing data. d The reasons for exiting the system in this category are: transfer; release on appeal or bond; escape; other; and unknown.

The United States of America 2. HISTORICAL BACKGROUND The history of life imprisonment in the United States is extraordinarily rich. Many of the arguments that are used throughout the world, both to justify the use of life imprisonment and to limit its application, have deep roots in American penal thought. In particular, the optimistic belief in the malleability of human nature had a profound impact on patterns of life imprisonment, long after it was officially denounced as a penological doctrine. a) The colonies and the new republic The important place that life imprisonment would take in American penal practice was not immediately apparent. In the colonies, which were to become the United States of America, life imprisonment was little used and less discussed. In part the reason was philosophical: imprisonment was not the primary form of punishment. Instead, the focus was on punishment of the body - the public execution for the most serious offences and other public forms of humiliation for others. There was also a practical reason for the absence of life imprisonment as a penalty. The prisons of colonial North America were simply incapable of providing secure accommodation for prisoners for long periods. Where life imprisonment was imposed it was often for offences not of the greatest seriousness.12 In the immediately post-revolutionary United States, however, imprisonment, and more specifically imprisonment for life, soon became a key feature of the penal system. The number of crimes punishable by long sentences of imprisonment increased drastically. Of those committed to New York State prisons between 1797 and 1801, for example, no fewer than 15 percent had received sentences of life imprisonment.13 There were two reasons for the increased use of the sentence of imprisonment. First, a change in thinking about punishment led to a search for new forms of sentence capable of meeting the demands of a new approach. Secondly, penitentiaries subsequently developed as institutions capable of carrying out such sentences. The new thinking about punishment in North America was strongly influenced by the ideas of Cesare Beccaria, whose work was widely read in North America by reformers including Thomas Jefferson.14 They may even have had some influence on the incorporation of the Herbert W. K. Fitzroy, "The Punishment of Crime in Provincial Pennsylvania" in Eric H. Monkkonen (ed.), Crime and Justice in American History, Vol. 2, Courts and Criminal Procedure, Westport: Meckler, 1991, 85-86. The author does give some examples of where the sentence was in fact imposed in pre-Revolutionary Pennsylvania. David J. Rothman, "Sentencing Reforms in Historical Perspective", (1983) 29 Crime and Delinquency, 633. For an account of the growth of imprisonment with hard labour, see William E. Nelson, "Emerging Notions of Modern Common Law in the Revolutionary Era" in Eric H. Monkkonen (ed.), Crime and Justice in American History, Vol. 1, The colonies and the early Republic, Westport: Meckler, 1991, 429-430. On the influence of Beccaria, see David J. Rothman, The Discovery of the Asylum: Social Order and Disorder in the New Republic, Boston: Little, Brown and co., 1971, 59-60. For an argument that Beccaria was relatively less influential and that where he was mentioned, his authority was used to support approaches derived from an older English tradition of imprisonment going back to the workhouses of the 29

Chapter 2 prohibition on cruel and unusual punishment, which, following the precedent of the English Bill of Rights of 1689, was included as the Eighth Amendment to the US Constitution and, sometimes with slight variations, in a number of State constitutions.15 The objective of punishment, Beccaria argued and his many American followers agreed, was deterrence. This was best accomplished by the application to all offenders of predetermined penalties that were proportionate to the crime but severe enough only to deter and not to destroy. Capital punishment was regarded as exceptionally harsh and closely associated with the former colonial overlord. Other forms of public humiliation of offenders were increasingly perceived as destructive of the individual. The result was that in the last decade of the eighteenth century and the first decades of the nineteenth century the number of capital offences was reduced drastically and public humiliation generally discontinued.16 In many instances they were replaced by terms of imprisonment for fixed numbers of years or, for what were regarded as the most serious offences, for life.17 The shift towards codes of punishments in which there would be proportionality, expressible in terms of years of imprisonment, between the various offences in the penal codes, seemed to be well under way. Neither of these reasons explains the retention on the statute book of imprisonment for life. Carried to its extreme the radical logic of proportionality would have done away poor, see Adam J. Hirsh, The Rise of the Penitentiary: Prison and Punishment in Early America, New Haven: Yale University Press, 1992, 26-27. There can be little doubt, however, that Beccaria was widely read by influential Americans in the late eighteenth and early nineteenth centuries: see the sources cited by Marvin. E. Wolfgang in his introduction to Cesare Beccaria, Of Crime and Punishments, New York: Marsimilio Publishers, 1996, xxiv (originally published in 1764 as Dei Delitti e Delle Pene); and Gary Wills, Inventing America: Jefferson's Declaration of Independence, New York: Doubleday, 1978, 152. See also Marcello Maestro, Cesare Beccaria and the Origins of Penal Reform, Philadelphia: Temple University Press, 1973, 43. In the foreword to the same book Norval Morris notes (at viii): "Thomas Jefferson relied heavily on Beccaria. And Beccaria was one of the mainstreams of influence on the Quakers of Pennsylvania in their innovative movement at the end of the eighteenth century towards a more humane system of punishment." The words 'cruel or unusual' were sometimes adopted. Nothing much seems to have turned on whether 'and' or 'or' was used. Whether Beccaria's influence extended to the actual wording of the Eighth Amendment is controversial. Circumstantial evidence, which relies primarily on the widespread general impact of Beccaria's ideas to argue that he had such influence is presented by Deborah A. Schwartz and Jay Wishingrad, "The Eighth Amendment, Beccaria, and the Enlightenment: An Historical Justification for the Weems v United States Excessive Punishment Doctrine", (1975) 24 Buffalo Law Review, 813-820. On the other hand, Charles W. Schwartz, "Eighth Amendment Proportionality Analysis and the Compelling Case of William Rummel", (1980) 71 Journal of Criminal Law and Criminology, 381-2 denies that Beccaria had any direct influence on the drafting and therefore the meaning that was given to the Eighth Amendment at the time of its enactment. See in general Lawrence M. Friedman, Crime and Justice in American History, New York: Basic Books, 1993. For a specific example see, Michael S. Hindus, Prison and Plantation: Crime, Justice and Authority in Massachusetts and South Carolina 1767-1878, Chapel Hill: University of North Carolina Press, 1980, 100. For a detailed case study of the introduction of life imprisonment in one State, see Michael Meranze, Laboratories of Virtue: Punishment, Revolution and Authority in Philadelphia 1760-1835, Chapel Hill: Institute of American History and Culture / University of North Carolina Press, 1996.

30

The United States of America with this form of imprisonment as well. One may have expected that, as in revolutionary France,18 there would have been a move towards abolishing life imprisonment entirely in order to remove completely executive discretion, with its 'royal' taint, from the implementation of sentences. The same intense debate seems not to have taken place in the fledgling United States of America.19 The move towards moderate and proportionate punishments was a partial change. Although the use of capital punishment was restricted and eventually abolished in a few States, the abolition remained incomplete.20 The answer as to why the abolition was not completed seems to lie in the fact that punishment for the most serious offences, typically murder but also a range of other offences such as treason, rape and arson, also had an expressive function beyond the calculus of deterrence. To an extent that has rarely been recognised, additional harshness at the top end of the penal scale remained a factor in the thinking of even those who were opposed to capital punishment. The authority of Beccaria was often quoted as a source of opposition to capital punishment. However, as noted in Chapter 1, Beccaria continued to favour a cruel form of life imprisonment. His American contemporaries did not raise this ambiguity. The reforms of the immediately post-independence period were concerned primarily with changing the penal law. This in itself is significant, for in this period many more offences were now punishable by life imprisonment than had previously been the case, a factor that would inevitably impact not only on sentencing, but also on the structures responsible for the implementation of punishment. The increased use of sentences of imprisonment (including life sentences) was one of the factors that sparked the re-evaluation of the purposes of imprisonment and of how best to achieve these purposes, a process that had a profound impact on the changes American prisons underwent in the 1820s and the 1830s. Different, often competing, See Chapter 1. Some contemporary American abolitionists did raise the issue in passing. Benjamin Rush in his pamphlet, "On Punishing Murder by Death", 1792, (reprinted in Dagobert D. Runes (ed.), The Selected Writings of Benjamin Rush, New York: Philosophical Library, 1947, 35-53), speaks simply of "long confinement and hard labour" as an alternative punishment for murder (at 36). At no point does he mention imprisonment for life directly. However, in a subsequent paragraph, which deals with the desirability of not having death as the punishment for murder in order to ensure that acquittals are not brought about by the desire to avoid imposing the death penalty, Rush adds a footnote which develops an argument for proportionate sentences also for murder: "A scale of punishments by means of imprisonment and labour might easily be contrived, so as to be accommodated to the different degrees of atrocity in murder. For example - for the first or highest degree of guilt, let punishment be solitude and darkness, and a total want of employment. For the second, solitude and labour, with the benefit of light. For the third, confinement and labour. The duration of these punishments should likewise be governed by the atrocity of murder, and by the signs of contrition and amendment in the criminal." (at 48, emphasis in the original). See Hugo Adam Bedau, "Background and Developments" in Bedau (ed.), The Death Penalty in America: Current Controversies, New York: Oxford University Press, 1997, 3-4. For a contemporary overview, see William Crawford, Report on the Penitentiaries of the United States, 1835, (reprinted Montclair: Patterson Smith, 1969, 5-6). 31

Chapter 2 forms of prison regimes were introduced to deal with the increased numbers of sentenced prisoners. These regimes were epitomised by the New York or Auburn system with its emphasis on prison labour and the Pennsylvania system that emphasised solitary confinement. They had in common that they aimed at the rehabilitation of inmates rather than their mere deterrence. There was more to the changes than merely a mechanism for coping with increased numbers of prisoners. The prison regimes were reconstituted with the intention of recreating in the institution the tightly ordered society, which, it was felt, was being threatened by the loosening of social bonds and the increased mobility in the outside society. It was thought that an ordered regime would automatically ensure the rehabilitation of prisoners (and for that matter of the insane whose infirmities could be related to the same disorder in the wider society).21 The new approach to imprisonment did not affect the patterns of sentencing, for the ideal was that the regime to which the prisoner was subject would effect the rehabilitation, whilst the fixed prison term continued to fulfil the requirement of deterrence. Only after having served their sentences would prisoners be able to demonstrate their new selves to the wider community. In the case of prisoners sentenced to life imprisonment, the ideal was not so obvious, for if the system did reform them, they would in theory still never be able to return to the community. The practice was often different. Notwithstanding the ideological distrust of arbitrary executive authority, the power to pardon was used liberally throughout the nineteenth century to release prisoners, particularly those sentenced to life imprisonment, before they had completed their sentences.22 There is nothing, however, to suggest that only those prisoners who had been cured were being pardoned and the widespread use of pardons was soon perceived as a weakness in a system that was otherwise widely admired. William Crawford, an English visitor to the United States in the 1830s, commented that the use of pardons constituted "a power constantly at work to impair the efficiency of the law and undermine the best effects of punishment".23 He noted that prisoners who were serving long sentences were more likely to be pardoned and that out of 27 prisoners pardoned from the Auburn prison in the year, 1831, eight had been sentenced to life imprisonment.24 When the system began to decline, as it did from the 1850s onwards as the prisons became overcrowded and the rigour of the idealistically conceived regimes was reduced, a critique of the system of pardons formed a basis for negative comment. An influential nineteenth century study by Wines and Dwight found that between 3 October 1828 and 1 October 1866 12.5 percent of all prisoners in Massachusetts and a full 50 percent of those

See the definitive account of these developments in Rothman, The Discovery of the Asylum (n. 14) 79-154. Samuel Walker, Popular Justice: A History of American Criminal Justice, 2nd ed., New York: Oxford University Press, 1998, 100. The penal historian, Blake McKelvey, comments on the position in the middle of the nineteenth century: "The free use of the pardoning power, long a vicious feature of state government, was steadily undermining the tradition that courts should mete out carefully measured sentences for specific crimes." (American Prisons: A History of Good Intentions, Montclair: Patterson Smith, 1977, 61). Crawford (n. 20) 30. Ibid. 32

The United States of America serving life sentences were pardoned.25 According to their calculations these prisoners sentenced to life imprisonment served an average of only 7.8 years of their sentences before being pardoned. This of course does not mean (as some contemporaries may have thought) that the average life sentence served was less than eight years. Some prisoners who were not pardoned may have served much longer; how long was not revealed. What was recorded is that of the prisoners serving life terms in the 38 years studied, 16 percent died before release. Nevertheless, the fact remains that Wines and Dwight could claim that a high percentage of prisoners were pardoned, and that, to use a mild anachronism, truth in sentencing was not being achieved.26 Not only the granting of pardons but also the process according to which it was done was examined by Wines and Dwight. They were very critical of the latter too. They found the system wide open to abuse, as had in 1833 already the most famous of all visitors to American prisons in the nineteenth century, Beaumont and De Tocqueville.27 Wines and Dwight noted: "A person convicted of murder in the second degree, attended with the most aggravating circumstances, who has powerful friends, or is plentifully supplied with money, has tenfold more chance of a pardon than a poor wretch found guilty of petit larceny." 28

b) A new penal vision From the conclusions reached by Wines and Dwight, not only on pardoning but also about other aspects of the penal system as a whole, as well as from other contemporary sources,29 it becomes increasingly clear that the prisons, which were the pride of Enoch C. Wines and Theodore W. Dwight, Report on Prisons and Reformatories of the United States and Canada made to the Legislature of New York, Albany: Van Benthuysen and Sons, 1867, 302. That is the only conclusion that a modern criminologist would allow for the limited statistics that Wines and Dwight (n. 25) present (at 296-302) for Massachusetts and also for Ohio and Wisconsin. A similar conclusion is reached by Timothy Dodge, Crime and Punishment in New Hampshire, 1812-1914, New York: Peter Lang, 1995. Indeed, Dodge notes that prior to 1870: "One ironic result of pardoning was that a person sentenced to life in prison not only had a greater chance than other inmates of receiving a pardon, he or she also served on average less time than someone sentenced to 10 years or more." (at 292). Gustave Beaumont and Alexander De Tocqueville, On the Penitentiary System of the United States and its Application in France, Philadelphia: Carey, Lea and Blanchard, 1833. (See also the extended attack on discretionary pardons by Francis Lieber their contemporary American translator, at 28-33 of the same work). Wines and Dwight (n. 25) 304. They did note, however, that it was possible to combine the granting of pardons with some certification of good conduct by the head of the prison, as was being done in Wisconsin. In this way positive use could be made of what they otherwise regarded as an undesirable institution, as it could serve as a form of encouragement for reformative sentences and for the "Irish system of prison discipline", (a forerunner of parole), things they heartily supported. (Ibid.) See Rothman, The Discovery of the Asylum, (n. 14) 245-247.

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Chapter 2 Americans in the 1820s and 1830s, were not living up to their initial high ideals. From the 1850s onwards prisons were beset by problems of indiscipline and overcrowding. Moreover, it was increasingly obvious that an erratically applied pardoning policy hindered the optimal functioning of the penal system. The rehabilitative expectations, which had been placed so confidently in a carefully managed prison system, were not being met. It became clear to the critics that more than improved administration of the existing system was required. The active co-operation of the prisoner would have to be sought in a new approach that would not only provide conditions for self-betterment for prisoners but would also actively involve expert prison officials in making decisions about the treatment of prisoners and the time at which they could best be released. Some of these ideas were already present in Wines and Dwight's 1867 Report. In the course of this otherwise factual Report, the authors indulged in a fantasy about what they would like to tell a typical offender in order to explain and justify their ideal approach. Addressing a fictitious offender they wrote: "John Doe, you have wickedly broken one of the just and necessary laws of society. You have shown yourself to be a dangerous man, unfit to go at large. You must be separated from your fellows. You must suffer the penalty which the law has righteously annexed to transgression. You must be made to feel that the way of the transgressor is hard. You must be shut up in prison, and remain there until you give evidence that you are a changed man and can safely be permitted again to enjoy your freedom. In thus dealing with you, society has no resentments to gratify, no vengeance to inflict. It is for your good, as well as for her safety, that she so afflicts you. You must be punished for what you have done: but while you are in prison, we will give you every chance to recover yourself. Nay, more; we will help you in that work. ... But you must work with us. Your will must be in accord with ours; your efforts must tend in the same direction. There must be, on your part, a real and hearty co-operation with us. On this condition alone can you attain that radical reformation of character, to which we wish to bring you, and the achievement of which is indispensable to your liberation. Until you show, to our satisfaction, that you can be restored to freedom with safety to the community, your imprisonment must continue; and if you never give us such satisfaction, then you never can be discharged; your imprisonment will be for life. We do not set the madman free, till he is cured of his madness; neither can we safely, or even justly, set the criminal free till he is cured of his propensity to crime. As the security of society and the good of the lunatic require that this confinement should be regulated upon this principle; so, equally, do the security of society and the good of the criminal demand that his incarceration should be adjusted upon the same principle. We put your fate into your own hands; and it is for you to determine the period, within certain necessary limits, during which the restraint upon your liberty shall continue.

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The United States of America You may prolong it to the close of your life, or restrict it to a duration which you yourself will allow to be but reasonable and just."30 This remarkable passage presaged in a number of ways a new approach to the treatment of prisoners that would give the sentence of life imprisonment an even more important place in American penal practice. Note that John Doe is clearly being threatened with imprisonment for life if he does not co-operate. This threat is not because John Doe has committed a particularly serious crime that justifies such a drastic punishment. He has simply broken "one of the just and necessary laws of society". The passage gives no indication of any concern that John Doe may serve a longer sentence than is justified by this very vaguely specified offence. The justification for the punishment is not sought at all in its proportionality to the transgression, but in the idea that the criminal cannot "safely or even justly [be] set free until he is cured." The successful cure has become the sole criterion for a just limit on the sentence. Another noteworthy feature of this passage is the strong parallel that it draws between curing the "madman" of his "madness" and curing the criminal "of his propensity to crime". Also important is the idea that the offender must show to the "satisfaction" of the prison authorities (the "us" in the passage) that he is fit to be released. They, rather than the courts or the pardoning governor, literally and figuratively hold the key. It is only a slight exaggeration to say that the next century saw the actualisation of the full implications of this passage for the theory and practice of life imprisonment in the United States of America. The new ideas were of course not accepted immediately, let alone translated into practice. A crucial next step was a forum for the new ideas to be articulated. It was provided by the National Congress on Penitentiary and Reformatory Discipline, which was held in Cincinnati in 1870,31 an event that subsequently has been recognised by historians as a turning point in the history of American penological ideas. Thus Enoch Wines explained to the Congress "the principle that imprisonment ought to be continued till reformation has been effected, and if that happy consummation is never attained, then during the prisoner's natural life" and claimed that this principle had "become a conviction with a large number of American penologists".32 In the same speech he asserted that "the principle of a probationary stage of imprisonment, in which the training shall be more natural, and the genuineness of the prisoner's reformation may be adequately tested, is every day gaining adherents".33

Wines and Dwight (n. 25) at 279-280 (emphasis in the original). In building up to this rhetorical passage Wines and Dwight cite a number of contemporary experts, including the English penal reformer, Matthew Davenport Hill who argued in 1855 that the "hands of the government" should be strengthened to "enable those who administer the criminal justice of the country to retain in custody all such as are convicted of crime, until they have, by reliable tests, demonstrated that they have the will and the power to gain an honest livelihood at large" (at 276). Enoch C. Wines (ed.), Transactions of the National Congress on Penitentiary and Reformatory Discipline held at Cincinnati, Ohio, October 12-18, 1870, Albany: Weed, Parsons and co., 1871. Enoch C. Wines, "The present outlook of prison discipline in the United States", in Wines (ed.) (n. 31) 19. Ibid. 35

Chapter 2 At the same Congress, Zebulon Brockway argued passionately for indeterminate sentences, advancing no fewer than 15 arguments in their favour.34 These ranged from the most abstract statements of principle: "It [the indeterminate sentence] supplants the law of force with the law of love, both in the state administration as a fact, and in the esteem of the people, giving the state her true place - no longer 'the governor', but 'the guardian'. 3 5 to a shrewd recognition that prison would be easier to administer if decisions were made by prison officials: "It removes the occasion, and so mollifies the feeling, of animosity usually felt toward the law and its officers; puts the personal interest of the prisoner plainly in line with obedience to rules; and thus renders safe and simple the disciplinary department.... It concentrates the faculty of finesse (so common with convicts) and the use of artifice upon the persons charged with their curative treatment, thus securing active and actual contact of mind with mind, and bringing under immediate manipulation that element of character which should first be reached, an attainment so very difficult ordinarily."36 A prison board would, Brockway argued, be better equipped than other participants to judge when a prisoner should be released. Brockway phrased this somewhat obliquely: "It [the indeterminate sentence] places the responsibility of fixing the period of imprisonment and the amount of restraint with a responsible head, known to the public, easily reached and reviewed, instead of leaving it to the whim of officers elected by the popular vote, who (as the rule) have neither time nor opportunity to know what is best in the case."37 The elected official that Brockway had in mind certainly included the governors whose use of their power to pardon had been much criticised, but it may also have encompassed the judiciary. In a separate paragraph Brockway comments that indeterminate sentencing will not necessarily remove the power to determine periods of imprisonment for criminals from the judiciary but that it will at very least give them the advantage of expert advice in their decision-making.38 The Cincinnati Congress consolidated its thinking in a series of Principles.39 These included the crisp statement that:

Zebulon Brockway, "The Ideal of a True Prison System for a State" in Wines (ed.) (n. 31) 55-56. Ibid., 55 (emphasis in the original). Ibid, (emphasis in the original). Ibid. Ibid. "Declarations of Principles Adopted and Promulgated by the Congress" in Wines (ed.) (n. 31) 541-547. 36

The United States of America "Peremptory sentences ought to be replaced by those of indeterminate length. Sentences limited only by satisfactory proof of reformation should be substituted for those measured by mere lapse of time."40 On the question of the proper means of judging when, how and by whom it should be determined that there was satisfactory proof that prisoners had reformed, the Principles were more equivocal than some of the speakers at the Congress had been. The Principles condemned the too free use of pardons41 and made some positive reference to the Irish prison system, which had been much praised during the Congress for its innovative "ticket of leave scheme" - a forerunner of the modern system of parole. There was no direct statement of principle, though, on the vital question of early release. c) Implementing the new vision From the point of view of the sentence of life imprisonment this ideological shift was a development of signal importance. Whereas previously life imprisonment had been imposed only as a theoretically fixed-term sentence for the most serious offences (invariably sentences that had previously been sanctioned by the death penalty), it was now being envisaged as the upper end of an indeterminate sentence that could be imposed for a far wider range of offences and for a wide category of recidivists. An indeterminate sentence (particularly an indeterminate sentence in which the maximum penalty was life imprisonment) had a second implication, namely that a mechanism had to be created for determining when the "happy consummation" of reform had been achieved and the prisoner could be released from custody. For a prisoner, sentenced to what was potentially lifelong incarceration, the creation and operation of such mechanism was a matter of great importance As the legal historian, Lawrence Friedman, has commented: "The indeterminate sentence pointed in two directions: leniency and rehabilitation for the saveable; eternal damnation for the rest."42 The actual implementation of the new vision did not follow automatically or easily. Much uncertainty remained about its key piece, the indeterminate sentence. In the years after 1870 there were some experiments with indeterminate sentences but they were mostly sentences for juveniles. The most famous of these was that carried out at the Elmira reformatory in New York where Brockway put his ideas into practice with a carefully selected group of younger offenders. Closer investigation shows, however, that the sentences they served were not fully indeterminate, that is they provided for a short minimum sentence and a much higher maximum sentence within which the reformatory authorities had considerable discretion. They were not sentences of life imprisonment, not even in the sense that life was the theoretical maximum, as was suggested by the new rhetoric.43 Indeed, in 1877 a proposal for fully indeterminate sentences was rejected by Principle VIII, 541-542. Principle XXVII, 545. Friedman (n. 16) 161. Ibid. 160-161.

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Chapter 2 the New York legislature, which instead limited the sentences to "the maximum term provided by the law for the crime for which the prisoner was convicted and sentenced".44 Thus the status quo was preserved in which for most offences, other than those serious offences for which life imprisonment was already a competent sentence, a legislatively or judicially imposed maximum remained as limit on the executive discretion to continue incarceration. An exception to this residual proportionality principle emerged from the 1870s onwards in respect of habitual offenders. They could be condemned to life imprisonment after a certain number of offences.45 This did not mean, however, that the sentence would be fully enforced. Resistance was still possible from other State actors, who might find such a sentence disproportionate or, for less high-minded reasons, might not seek its imposition at all. Thus, as early as 1889, there is evidence from Ohio that prosecutors were rendering the 1884 habitual criminal law ineffective by refusing to indict under its provisions. 46 Habitual criminal provisions, like other life sentences, did not necessarily mean that offenders would be detained for the rest of their lives. Thus we have seen that release on pardon predated the new approach and was much criticised by its proponents. The question was whether to retain it in a modified form or to substitute something else for it. One possible substitute that presented itself was a system of 'good time', that is a system in which prisoners were given credit for a fixed number of days for each year that they served without infringing prison discipline. Provision for early release based on good time was introduced in New York as early as 1817 and by 1869 23 States had some form of 'good time' law.47 From the point of view of penal administrators such a law had the enormous advantage of giving them a tool for controlling the behaviour of inmates. However, logically it could not be applied to life sentences: it is impossible to deduct a number of days for each year if the number of years is itself indefinite. 'Good time' had to be combined with some other device that rendered life imprisonment a definite sentence, at least for the purpose of this calculation. Two models presented themselves both for this purpose and more generally for achieving the goal of treatment-based decision-making. The first was a pardoning procedure modified to eliminate the excesses of arbitrary decision-making by the governor and modified also to allow for the continuation of the pardon to be conditional on the prisoner meeting certain standards when released into the community. A number of States followed this route and sought to limit the discretion of the governor by setting up boards of pardons, which could make decisions to pardon on the governor's behalf. In

McKelvey (n. 22) 84. In terms of a law passed in Louisiana in 1870 a fourth offence could result in life imprisonment. An 1884 Ohio law designated an offender who committed a third offence a habitual criminal who could be detained "for and during his natural life" and this was followed by a similar provision in Massachusetts two years later; Cf. Friedman (n. 16) 161; Walker (n. 22) 100. Walker (n. 22) 100. Ibid., 102. Good time was also introduced in the Federal system in 1875. 38

The United States of America some instances they could also make the release following the pardon conditional on good behaviour by the pardoned offender. The alternative to the pardon was release on parole. Parole too was a form of early release but its dominant characteristic was that it, in theory, was not primarily a release from the sentence but rather a change of the form of treatment. Instead of the prisoner being treated in the prison he would be released to be supervised by officials on the outside. At the core of the parole decision was the notion of expert judgement on release based on the superior knowledge of the officials who had treated the prisoner in prison. The treatment-oriented reformers recognised that a reformed system of (conditional) pardons and a parole system could have much in common, but preferred a system in which the pardoning power was exercised by the expert prison official.48 The pattern that emerged for the release of lifers in the last decades of the nineteenth century was mixed. Parole systems that granted powers in addition to those of the traditional pardons emerged in a number of States, albeit slowly. By the end of the century the parole board, as a locus where decisions on release and the determination of conditions for such release, had been introduced only in a minority of States. Moreover, where such boards did exist, their relationship was particularly uncertain in the instances where life imprisonment had been imposed for the traditionally serious offences, imposed that is either by a court or indirectly by a governor commuting a sentence of death to a life term. From the point of view of the governor the advantage of a parole system was that it took from him the burden and the political pressures and risks associated with having to exercise clemency in order to reduce excessive sentences and relieve prison overcrowding. A detailed study of the emergence of parole in California provides evidence of this phenomenon and suggests that in that State, at least in the last decade of the nineteenth century and the first decade of the twentieth century, the development of parole was influenced primarily by such pragmatic concerns.49 It is noteworthy that the first parole legislation in California in 1893 applied only to first offenders and excluded those convicted of murder.50 This indicates that life sentences were regarded as particularly serious and not easily to be made subject to routine alteration by a parole board. When parole for those convicted of murder and other lifers was introduced in 1901,51 the political ground was carefully prepared by emphasising not only that they had to serve a minimum sentence of seven years but that in many cases the applications were accompanied by petitions from the trial juries and judges emphasising that the original

48 49 50 51

F.B. Sanborn, "How Far is the Irish Prison System Applicable to American Prisons?" in Wines (ed.) (n. 31) 427-428. Sheldon L. Messinger, et al., "The Foundations of Parole in California", (1985) 19 Law and Society Review, 69. Ibid.,84. Although the 1893 legislation had not barred consideration of life prisoners for parole, they were not considered until 1901 when the legislation explicitly made them eligible. Ibid., 85, fn. 12. 39

Chapter 2 sentences were in fact too severe.52 Thus, even as these cases were being fed into the parole system, the residual principle of proportionality was being stressed. The introduction of the parole system in California may have been motivated by pragmatic concerns, but in the USA as a whole during the same period changes in penal policy were being shaped by a wider belief in rehabilitation, rooted in scientific optimism, and trust in the benign power of state intervention that characterised the progressive era. Penal historians, such as Rothman, Walker, Friedman and McKelvey, all emphasise that the two decades from the late 1890s onwards, the so-called progressive era, saw the introduction of indeterminate sentences and parole systems in the large majority of American States,53 based on the belief that offenders could be treated and cured by a combination of institutional and community care developed by experts. The extent of this confidence seems to have been peculiarly American. Concerns expressed by contemporary European reformers that treatment-based approaches might undermine individual liberty were largely ignored. In practice some, albeit reduced, limits were maintained. The indeterminacy of the progressive era was usually partial in the sense that legislation continued to provide minimum and maximum sentences for most offences, but the element of indeterminacy was that the courts in imposing sentence were bound by these limits. They could not determine an appropriate sentence at a fixed point within these limits: at best they could only modify the legislatively imposed limits slightly when they announced the sentence. Within this range these sentences were therefore indeterminate and the experts of the parole boards had to decide on actual dates of release for sentenced prisoners.54 Although indeterminate sentences were generally not literally sentences of from one day to life, the powerful ideas that underpinned them nevertheless had a clear impact on various aspects of life imprisonment. In respect of those serious crimes that historically had been punished by death or by life imprisonment, a strong emphasis on the potentially treatable offender meant that the death penalty had to be reconsidered. Just such a debate took place toward the end of the progressive era and led to some States abolishing their death penalties and replacing them with life imprisonment.55 The changes were generally short lived, however. In a number of cases much-publicised crimes refocused attention on the offence and the perceived continued need for a sentence that was sufficiently harsh, as well as certain, led to the re-introduction of the death penalty. The progressive movement also created the potential for the reduction of the harshness of life imprisonment imposed as a sentence for the most serious crimes by making provision for these sentences to be subject to the jurisdiction of parole boards, which could order the release of prisoners who had been 'cured'. Yet it is noticeable that life sentences imposed for the most serious offences were less likely to be placed under the See Governor Henry T. Gage in 1901 quoted by Messinger et ai, Ibid., 90. Parole was introduced in the Federal system as well by An Act to Parole United States Prisoners, ch 387 36 Stat. 819 (1910). Cf. Rothman (n. 14); Walker (n. 22); Friedman (n. 16); and McKelvey (n. 22). Edward Lindsey, "Historical Sketch of the Indeterminate Sentence and the Parole System," (1925) 16 Journal of Criminal Law, Criminology and Police Science, 9. Bedau (n. 20) 5-6.

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The United States of America jurisdiction of such boards than indeterminate sentences imposed for other offences. The Californian pattern of excluding life sentences imposed for murder and other serious crimes from the parole system was repeated in other States.56 Where such sentences were included a higher minimum was set than for other offences, thus demonstrating that at least a residual notion of proportionality between crime and the offence remained. Mostly the increased confidence in the ability of state institutions to treat criminality, however, worked in the direction of extending the potential for the state to control the individual and often resulted in increased control in practice as well. Thus the widespread introduction of parole led to an increase rather than a decrease of the average length of sentences served. This effect became increasingly clear when the dominant treatment paradigm was attacked from the perspective of deterrence in the 1920s and 1930s. David Rothman describes, for example, the attack on the parole system and considers how such a typical feature of a treatment approach managed to survive.57 One of the ways in which public concerns were met was by modifying the legislated sentences to add stricter minima, whilst still allowing for parole. The acceptance of the restriction of discretion might appear paradoxical in the light of the claimed ability to treat offenders, but the paradox is apparent rather than real, for the confidence lay in the ability to diagnose rather than necessarily to treat in all cases. In the medical analogy so often used at the time, some patients were incurable whilst others simply died of old age. The harsher face of the treatment approach was also shown in the area where crime and mental condition overlapped. Both Massachusetts and New York provided for potential detention for life for the so-called defective delinquents. In so doing they were simply mirroring another aspect of the confidence felt at the time in the ability to treat. Persons diagnosed as insane were detained and treated confidently in a society in which the rightness of the power to intervene was not widely questioned. Indeed, the ability to detain the 'insane' was used as a justification for life imprisonment: As a contemporary expressed it: "It is a mystery to me why people are so easy about sentencing insane persons for life when they think it a horrible thing to send up convicted people for life .... If we can do that with insane people why can we not do it with convicted criminals who have shown themselves to be established criminals?"58 This tendency to blur distinctions between indefinite civil confinement and life imprisonment in a criminal charge was increased by the statutes on "sexual psychopaths" or "sexually dangerous persons", which in Norval Morris' memorable words " spread

Lindsey (n. 54) 9; for a case study, see Andrew A. Bruce, et al, The Workings of the IndeterminateSentence Law and the Parole System in Illinois: A Report to Hinton G. Clabaugh, chairman, Parole Board of Illinois, Montclair: Patterson Smith, 1968 (originally published by the State of Illinois, 1928). Rothman also points out that offence related criteria were often considered at the parole stage but that that was not widely known to the public: David J. Rothman, Conscience and Convenience: The Asylum and its Alternatives in Progressive America, Boston: Little, Brown and co., 1980. Hastings Hart in New York in 1927 quoted in Rothman, Conscience and Convenience (n. 57) 199-200. 41

Chapter 2 like a rash of injustice across the United States from 1938 onwards".59 The new laws were not without their contemporary critics. As the eminent criminologist, Edwin H. Sutherland, explained in 1950: "Certain psychiatrists have stated that they are interested in the sexual psychopath laws principally as a precedent; they believe that all or practically all criminals are psychopathic, that all should be treated as patients, and that psychiatrists should have a monopoly on professional advice to the courts. These laws are dangerous precisely from this point of view; they could be passed over in silence otherwise, as a product of hysteria."60 Nevertheless, such laws continued to be passed. By 1960, 26 States and the District of Columbia had loosely defined categories of sexual offenders as 'mentally ill' and provided for their potentially indefinite detention in mental institutions.61 Although they may have been detained under the rules of civil confinement, the basis for their detention was largely their criminal conduct as redefined by the experts. The passage of these laws was undoubtedly a triumph for the psychiatric model of treatment and for the quasimedical expertise it represented. d) Consolidation and restriction The consolidation of a strong treatment element in the complex of justifications for life imprisonment continued in the face of further opposition in the 1940s. In the post World War II period this consolidation was strengthened by the formulations of the Model Penal Code, as well as by other proposed national codes such as the Model Sentencing Act developed by the Advisory Council of Judges of the National Council on Crime and Delinquency,62 the Standards relating to Sentencing Alternatives and Procedures63 of the American Bar Association and the Manual of Correctional Standards64 of the American Norval Morris, "Sentencing the Mentally 111" in Michael Tonry and Franklin D. Zimring (eds.), Reform and Punishment: Essays on Criminal Sentencing, Chicago: University of Chicago Press, 1983, 129. Edwin H. Sutherland, "The Sexual Psychopath Laws", (1950) 40 Journal of Criminal Law, Criminology and Police Science, 554. To some extent Sutherland's point was a narrow one. He also wanted to allow space for experts from other disciplines such as psychology, social work and sociology in the diagnosis and treatment of sex offenders and other offenders. Other contemporary critics such as Paul W. Tappan, "Sentences for Sex Criminals", (1952) 42 Journal of Criminal Law, Criminology and Police Science, 332-337 were equally scathing in their condemnation of the new laws. Stephen J. Schulhofer, "Two Systems of Social Protection: Comments on the Civil-Criminal Distinction, with Particular Reference to Sexually Violent Predators Laws", (1996) 7 Journal of Contemporary Legal Issues, 71. See Advisory Council of Judges of the National Council on Crime and Delinquency, "Model Sentencing Act", (1963) 9 Crime and Delinquency, 339, which includes both the text of the Act and comment on its provisions. American Bar Association Project on Standards for Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures, New York: Institute of Judicial Administration, 1968. American Correctional Association, Manual of Correctional Standards, 3rd ed., Washington: American Correctional Association, 1966. 42

The United States of America Correctional Association. Of these, the Model Penal Code, which was approved in 1962, was the most influential.65 It provided for a maximum penalty of life imprisonment for all felonies of the first degree, that is crimes such as murder (if the death penalty was not imposed66) and rape and robbery if certain aggravating factors were present.67 In addition, it designated certain persons as being potentially subject to extended terms of imprisonment. They were the "persistent offender", the "professional criminal," the "dangerous, mentally abnormal person", and the "multiple offender".68 There was very little difference in the description of the penalty applicable to the first-degree felons and the other offenders who could be subject to extended terms. In fact, the potential penalties for the former were marginally less severe: a minimum of between one and ten years and a maximum of life in the first case and a minimum of between five and ten years and a maximum of life in the second.69 The practical effect though was to create one, largely uniform, life term, in which there would be a sentence of a minimum of between one (or five years) and ten years and a maximum of life. In all cases there was the possibility of parole70 and therefore a large discretion for a parole board. It is noteworthy that the parole had to be for a minimum of one year and a maximum of five,71 after which the offender had to be discharged unconditionally.72 The overall model was clearly one that focused on the offender. This was subject to one exception. At the imposition of sentence this focus on the offender applied directly only to the non-first-degree felony cases, as they were classes of offenders who could be sentenced to life on grounds other than the heinousness of the offence of which they had been convicted. When it came to the way that the sentence should be implemented and ended after a period of parole, the successful rehabilitation of the offender was designed to be the key factor for all lifers. The treatment approach was even more prominent in the Model Sentencing Act. The official Comment on the Act supported the abolition of the death penalty (and its replacement by a term of life imprisonment in the case of murder in the first degree only73) on the ground that "[t]he entire frame of reference of the Act is that a diagnostic and treatment approach should be taken to all offenders, a stand in conflict with the death penalty".74 The treatment philosophy was further underlined by the approach that the drafters of the Act adopted toward parole. In their view, the sentencing system should not impose restrictions in the form of a minimum term, so as to give the parole board See Paul H. Robinson, Criminal Law, New York: Aspen, 1997, 68-72 and the sources cited there. American Law Institute, The Model Penal Code: Official Draft and Explanatory Notes, Philadelphia: The American Law Institute, 1985, Part II, s. 210.6. Ibid., Part I, s. 6.06. Ibid., Part I, s. 6.07 read with s. 7.03. Ibid., Part I, s. 6.06 compared with s. 6.07. In the alternate version of s. 6.06, the court would have the discretion to fix the maximum sentence of a first-degree felon at not more than 20 years or at life imprisonment. Ibid., Part I, s. 6.10. Ibid., Part I, s. 6.10(2). 76zd., Part I, s. 6.10(4). Model Sentencing Act (n. 62) s. 7 at 355. Ibid.

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Chapter 2 maximum flexibility in determining how long persons sentenced to life imprisonment should actually spend in prison.75 The maximum sentence of life imprisonment, supported by the Model Sentencing Act for first-degree murder, was an explicit recognition of the importance of the offence and of the symbolic significance of life imprisonment as an ultimate penalty. As the Comment explained: "murder in the first degree is generally deemed a uniquely heinous crime for which the gravest penalty under the code should be imposed".76 The Model Sentencing Act specifically dismissed the possibility of life sentences in any other circumstances. Felonies generally were not to be punished by terms of imprisonment of more than five years, but partial exceptions could be made for what the Act called "atrocious crimes"77 and "dangerous offenders".78 In the case of the former, the maximum could be increased by up to ten years,79 while the latter could be punished by a non-mandatory maximum of 30 years.80 The argument against the widespread use of life imprisonment is made in the context of the discussion of the section dealing with dangerous offenders. These offenders included, albeit somewhat more narrowly defined, those persons subsumed under the categories of the persistent offender, the professional criminal, the dangerous, mentally abnormal person and the multiple offender in the Model Penal Code. They were in all cases, except where they had been involved in what might loosely be called organised crime, to be subject to diagnostic assessment to determine whether they were suffering from a severe personality disorder, which would indicate that they were dangerous offenders and then to be treated accordingly for these disorders. Unlike the Model Penal Code, however, the Act did not provide for them to be sentenced to life imprisonment. The question posed in the Comment on this provision, "Why should a life term be avoided?", turns the usual claim that it can be source of treatment on its head. The Comment responds: "A life term, even though the offender is subject to release, is a psychological set against any treatment other than the passage of time. Even the small minority of offenders who are categorized as dangerous should be dealt with on a diagnostic and treatment basis."81 Underlying this argument phrased in treatment terms is a strong concern that sentences should not be extended beyond the minimum necessary for purposes of treatment or public protection. The Comment goes on to criticise State legislatures that enact minimum terms "that prohibit release even where the prisoner has been rehabilitated and Model Sentencing Act, (n. 62) Comment on s. 1 at 347 and Comment on s. 13 at 365. Ibid., Comment on s. 7 at 355. Ibid., s. 8 at 355. Ibid., s. 5 at 350. Ibid., s. 8 at 355. Ibid., s. 5 at 350. There is a hint in the comment on the section on dangerous offenders that the small number of persons who may remain dangerous after having served the maximum of 30 years that could be imposed on them could be detained in a State mental hospital (at 352), but this interesting angle was not pursued. Ibid., at 352.

44

The United States of America could safely be paroled".82 Even worse in its view are States that have life sentences that exclude parole completely. The Comment notes that the enforcement of habitual offender laws that allow for life imprisonment on a third and fourth felony conviction is "extremely spotty" and describes what it calls "pathetically unnecessary long-term cases".83 The Comment accepts that there are risks in releasing dangerous offenders but argues that they are minimal and have to be accepted because releasing no-one would be "intolerable not only as a matter of public policy and constitutional law but as a matter of public economy".84 The Model Sentencing Act may have been the systematic sentencing proposal of the 1960s that went furthest in attempting within a treatment approach to restrict the use of life imprisonment and to make it possible for those offenders who were sentenced to life imprisonment to be released early, but it was not a single voice. To a large extent its approach was supported by the influential Standards set by the American Bar Association. They too sought to exclude from detention persons who were not dangerous any more. Pragmatically, however, the Standards recognised that the use of minimum sentences was likely to continue. The Standards therefore specified that such minima should not exceed one-third of the maximum imposed.85 In the case of 'life sentences' legislatures should limit time served to ten or 15 years.86 Correctional standards too provided support for a treatment model, which required the recognition that all offenders had the potential to reform and that there should be procedures in place to ensure their eventual release. Thus Principle 19 of the American Correctional Association's Declaration of Principles specified: "No law, procedure or system of correction should deprive any offender of the hope and the possibility of his ultimate return to full, responsible membership in . society. 8/ The reality of the imposition and implementation of life imprisonment did not conform to these ideals in the decade that they were being expressed. Indeed, a contemporary survey, Parole Eligibility of Prisoners Serving A Life Sentence, revealed an enormous range of laws and practices.88 Every State had life sentences for murder, if the death penalty was not imposed, and for a limited number of other crimes, although in few were "more than 5 or 6 crimes punishable by a life sentence".89 In about half the States life

Ibid. Model Sentencing Act (n. 62) 353. Ibid. The Comment quotes these words (at 353) with approval from the First Report of the State of California Special Commissions on Insanity and Criminal Offenders of July 7, 1962. Standards, (n. 63) s. 3.2(c)(iii) at 21. Standards, (n. 63) s. 3.2(c)(ii) at 21. The American Correctional Association (n. 64), "Declaration of Principles of the American Correctional Association" at xix and xxii. Edwin Powers, Parole Eligibility Of Prisoners Serving A Life Sentence, Boston: Massachusetts Correctional Association, 1969. Ibid., 2. 45

Chapter 2 imprisonment existed for being a habitual offender, defined according to varying measures of recidivism. There were also striking variations in the eligibility of lifers for parole in the various States. In eight States parole could be granted at any time after the sentence. In those States where minimum periods that had to be served in prison were set, the minima varied from as low as six months to a high of 25 years. In ten States parole was not possible unless the Governor of the State intervened, either by granting parole in the form of a conditional pardon or by reducing the sentence to a fixed term, which would allow the consideration of parole. In many States the distinction between parole and executive pardon or clemency remained unclear. Not only did Governors usually retain discretion to pardon or commute a sentence at any time and thus ensure immediate release, but also the structure of the parole system in several States allowed them an effective veto or at least a strong voice in parole decisions.90 This somewhat confused national picture should not draw attention away from the fact that by 1969 the debate about life imprisonment had been shaped for a century by a reasonably constant thrust towards a penal system based increasingly on the ideal of rehabilitation of offenders. In the 1960s this impetus was combined with a movement towards the general reduction of punishment that was shaped, and that was in turn itself influenced, by national draft legislation and standards. The meshing of the two streams is illustrated in the perception that the death penalty was on its way out as an ultimate penalty. Thus Edwin Powers, the author of the survey discussed in the previous paragraph, commented on "an increasing public aversion to the taking of human life in retribution for crime".91 He speculated that this might lead to an increase in life sentences through the commutation of death penalties actually imposed, through the reluctance of prosecutors to seek the penalty or courts to impose it and, of course, through the possible abolition of the death penalty by constitutional interpretation or incremental legislative intervention in the various States.92 The acceptance of a treatment model as underpinning life imprisonment also made opponents of the death penalty bolder to suggest alternatives to the death sentence that would be less drastic than life without parole. Thus, in 1964 Hugo Adam Bedau could argue that the ultimate penalty for murder (and by extension for any other crime then regarded as a capital offence) should not be death but a life sentence with a minimum of ten years.93 In making this proposal Bedau was relying specifically on the Model Penal Code and on the ideal of treatment. Bedau was prepared to admit that his proposal was a compromise: "Even ten years would be an unnecessarily long imprisonment in a few cases," Bedau argued, "but the widespread desire for Draconian punishments and the anxiety over premature release of murderers may require some such concession."94

Ibid., 1-12. Ibid., 3. Ibid. Hugo Adam Bedau, "The Argument against the Death Penalty" in Bedau (ed.), The Death Penalty in America, Garden City NY: Anchor, 1964, 228-231. Ibid., 230. 46

The United States of America Other cautious restrictions on the use of life imprisonment without rejection of the treatment model came from the courts. By the early 1970s no case testing the appropriateness of a life sentence against the constitutional standard of the Eighth Amendment prohibition against cruel and unusual punishments had reached the United States Supreme Court, but jurisprudential attention was beginning to be paid to what that standard might mean. As early as 1909, in Weems v United States,95 the Supreme Court had for the first time recognised that a punishment could infringe this prohibition both because of its inherent cruelty and because the sentence, while constitutional per se, was excessively long or severe. This second part of the prohibition had been confirmed by the Supreme Court in later cases,96 although admittedly none of the decided cases yet dealt directly with the length of a prison term. These sentiments provided a jurisprudential basis for the Supreme Court of California to intervene in the case of In re Lynch97 when a sentence of one year to life imposed for a second conviction of indecent exposure was challenged as infringing the prohibition in the Constitution of the State of California on "cruel or unusual" sentences. The reasoning in this much-cited judgment is of considerable interest. The Court went out of its way to emphasise, subject to constitutional limitations, the wide scope of the legislature to prescribe punishments and to adopt a particular penal philosophy. It explained that while initially the purpose of indeterminate sentence laws had been to detain further "dangerous unrehabilitated criminals" who had served their original terms", this purpose had disappeared by the middle of the nineteenth century.98 The purpose now was "wholly ameliorative". It was "to individualise the rehabilitation process, and to use the power to shorten sentences as an incentive to reformation".99 Punishment should fit the criminal rather than the crime. The conclusion that the Court drew from this interpretation was essentially libertarian: "if the purpose of the indeterminate sentence law is thus to mitigate a punishment which 'would otherwise be imposed' the greater punishment must itself be one which it is within the power of the legislature to decree".100 This conclusion was buttressed by a further important argument. Earlier constitutional challenges in California had suggested that indeterminate sentencing laws infringed the separation of powers doctrine, as an executive agency, the Adult Authority, rather than a court or the legislature, in fact determined how long an offender served. This argument had been rejected on the basis that an offender was liable for the full term and had no vested right to a shorter sentence. The Court in Lynch drew the logical conclusion: "Manifestly, if the constitutionality of the indeterminate sentence law is thus upheld by deeming that the 'sentence' prescribed by the Legislature and imposed by the 217 US 349 (1909). See also Chapter 1 above. See in particular Trop v Dulles 356 US 86 (1958). 105 CalReptr 217 (1973). Ibid., 416. Ibid. Ibid.

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Chapter 2 court is the [maximum] term declared by the statute rather than later ameliorated by the administrative agency, that same sentence must also be measured against the constitutional test of cruel or unusual punishment."101 From these arguments the Court could then proceed to consider directly whether a life sentence was a constitutionally proportionate sentence for a second conviction for indecent exposure. It is noteworthy that in deciding to do so, the California Supreme Court was able to point to a number of other cases in other States where life sentences and other long sentences had been set aside by invoking a constitutionally derived proportionality rule.102 The Court also evoked the pronouncements of the US Supreme Court103 in setting as standard that a punishment would be contrary to the Constitution of California if "although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity".104 It elaborated a tripartite test for determining if this were the case. The test considered the degree of danger that the offender and the offence presented to society, the punishments prescribed in the same jurisdiction for more serious offences and the punishments prescribed for the same offence in other jurisdictions. On the basis of the test the Court held unanimously that a sentence with life as a maximum was unconstitutionally disproportionate for a second offence of indecent exposure. In spite of the decision in Lynch and similar decisions in a few other State Supreme Courts to restrict the use of life imprisonment as the upper limit of an indeterminate sentence, it would be a gross exaggeration to say that by the early 1970s life imprisonment per se was being questioned in the United States. On the contrary, it was well established. For the best part of two centuries it had been presented as a suitable punishment for serious crime and as an alternative ultimate penalty for the most serious. Moreover, the treatment ideology was closely coupled to indeterminacy of sentence, with the subtext that for the 'truly incorrigible', even those who had committed a series of lesser offences rather than a particularly heinous offence, life sentences were appropriate. Yet signs were beginning to emerge that aspects of the life sentence were open to question. One set of questions centred on whether a life sentence was appropriate at all for certain types of crime. In this respect both the Model Sentencing Act and the Model Penal Code were exemplary and could be read as presaging a development similar to that in respect of the death penalty that would reduce the list of capital offences to practically 101 102

103 104

48

Ibid., 417-18. For examples of life sentences held to be unconstitutionally disproportionate, see Workman v Commonwealth 429 SW 2d 374 (Ky 1968); Cannon v Gladden 281 P 2d 233 (Or 1955); State v Evans 245 P 2d 788 (Idaho 1952). See also People v Lorentzen 194 NW 2d 827 (Mich 1972) where a mandatory sentence of 20 years was held to violate the prohibition of "cruel or unusual punishment" in the Michigan State Constitution and a similar test for constitutional disproportionality was applied to that adopted in In re Lynch. Trop v Dulles (n. 96) at 100; and two dicta from the then recently decided Furman v Georgia 408 US 238 (1972) at 280 and 331. In re Lynch (n. 97) 424.

The United States of America only murder. Also seemingly beginning to open itself to serious debate was the question of the content of the life sentence itself. Should the sentence be a full life or should the offender be considered for release after a period? The lack of uniformity in release procedures seemed to make it inevitable that questions should be asked about the principles underlying the functioning of the organs that administered them (expert parole boards, systems for granting pardons etc.). In all, the questioning of various aspects of life imprisonment may have been thought to have laid the foundations for questioning the institution of life imprisonment itself. 3. THE 1970S AND THE MODERN ERA. The beginning of the 1970s saw some dramatic developments in penal policy. The broad contours of the shift in penal policy have often been described.105 The ideal of rehabilitation that had dominated American penology for so long became the subject of radical critique from the early 1970s onwards.106 This critique, which was related to much wider socio-political changes and to challenges to established authority, was inspired initially by a desire to limit the discretionary power of the State (both of the courts and of prison officials) and of 'experts' generally to ensure that punishments were reduced.107 The opposition to rehabilitation united both those who wanted to reduce punishments and those who wanted to increase them around new structures for imposing and implementing sentences. The initial claim that in the field of the rehabilitation of offenders 'nothing works' was part of this critique, but it was soon supported also by those who wished to impose harsher punishments on the grounds that offenders deserved them or subsequently on grounds of general deterrence or incapacitation. Optimistic penal reformers of the early 1970s may nevertheless have seen in their crystal ball the restriction of life imprisonment to the most serious cases, if not its abolition. They may have expected a debate about whether the imposition of the sentence should be mandatory or discretionary and discussion about how such discretion would be structured. They may also have expected that the implementation of the life sentence would be subject to increasing jurisprudential scrutiny; in that questions would be asked about what life sentences meant in practice and whether there were adequate legal standards for decisions on how, and particularly for how long, the sentence should be implemented. If so, they would have been disappointed by the reality of life imprisonment as found at the end of the century. Not only has there been a dramatic increase in the number of life sentences passed and in the range of circumstances in which they can be imposed but these issues have not been discussed systematically in the last 30 years. If anything, the discourse about life imprisonment has been more disjointed 105 106 107

Recently and elegantly by David Garland, The Culture of Control: Crime and Social Order in Contemporary Society, Oxford: Oxford University Press, 2001. Francis A. Allen, The Decline of the Rehabilitative Ideal: Penal Policy and Social Purpose, New Haven: Yale University Press, 1981. Stanley Cohen, Visions of Social Control, London: Polity Press, 1985. 49

Chapter 2 than ever before, a characterstic it has shared with debates of the imposition and implementation of punishment in general. In respect of the imposition of sentence generally there was initially a move away from provisions that allowed very wide ranges of discretionary implementation to fixedterm sentences. However, there was no consistency across States as to how these results should be achieved. One model, followed most prominently in California, was that sentences were prescribed directly in legislation. Another, adopted most prominently in Minnesota, and subsequently also in the Federal system, was that determination of prescribed sentences was entrusted to a Sentencing Commission.108 What the models had in common was that, with minor exceptions, they led to the imposition of longer sentences.109 In respect of implementation generally there was initially an attempt to reduce arbitrariness in the release process. One strategy was to seek to build due process safeguards into decisions about whether to grant parole or even pardons. However, at the same time the more fundamental critique of parole was undercutting the very basis of this form of early release by discrediting the notion that there was a point in a sentence at which the offender was most likely to have been 'rehabilitated' to the extent that the process could better be continued in the community. There were some successes in introducing due process in parole decisions at the level of the States and the lower levels of the Federal court system.'10 However, when the issue of due process in early release decisions eventually reached the US Supreme Court at the end of the 1970s it proved to be relatively unsympathetic to the notion that prisoners applying for parole111 or, even more so, for pardons112 had a right to due process. At the same time there was a movement to abolish the use of parole entirely. In a way this was the logical corollary of fixed-term sentencing and initially was supported explicitly by groups who hoped to reduce the length of sentences. It proved to be a false hope. Where parole was abolished it did not lead to shorter sentences but to longer terms actually being served. In other instances, as Jonathan Simon has demonstrated in the case of California,113 the shift that eventually took place was not so much an abolition of official discretion as the development of further powers for officials over offenders, even when they had been released from prison. Malcolm Feeley and Jonathan Simon have described this latter shift in general terms as the 'new penology', which is characterised by an attempt to reduce the perceived risk of crime to society by introducing actuarial techniques to determine who 'dangerous

108 109 110 111 112 113

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See generally, Michael Tonry, Sentencing Matters, New York: Oxford University Press, 1996. Marc Mauer, "The causes and consequences of prison growth in the United States", (2001) 3 Punishment and Society, 10-12. See Sheldon Krantz, Corrections and Prisoners Rights, 2nd ed., St Paul: West, 1983, 320 -333. Greenholz v Inmates of Nebraska Penal and Correctional Complex 442 US 1 (1979). Connecticut Board of Pardons v Dumschat 452 US 458 (1981). Jonathan Simon, Poor Discipline: Parole and the Social Control of the Underclass, 1890-1990, Chicago: University of Chicago Press, 1993.

The United States of America offenders' are and by incapacitating them both inside and outside prison.114 Other commentators have stressed that the outcome of the process of change, which started with the move away from rehabilitationist ideals, was a continuous increase in the use of imprisonment from the 1970s onwards and in harsher sentences generally. This increase was attributable to a complex social process rather than only one specific strategy. There was a deeper change in public attitudes to punishment that cannot be explained only in instrumental terms or in the undoubtedly important initiatives taken by politicians to exploit the new national mood.115 The initial intellectual commitment to replace rehabilitation as the justification for punishment with a carefully modulated emphasis on the just desserts of offenders was overtaken by a much more wide-spread popular punitiveness, which found its justification in an unstable mixture of desert theory, deterrence and incapacitation.116 The key question for our purposes is: how have these complex shifts in public penal policy impacted on life sentences and on the discourse about them? The answer cannot be simple, for, as we have seen in the initial picture of life imprisonment in the United States, there are many dimensions to the sentence as it is currently imposed and implemented. In order to answer the question I will focus on the development of three prominent dimensions of the life sentence in recent years. These are: (a) the use of the life sentence for drug offenders; (b) the rise to prominence of life imprisonment without the option of parole, primarily as a particularly harsh penalty for the most serious offences; and (c) the increased emphasis on 'three strikes and you're out' policies, that is life sentences for recidivists. These distinctions are somewhat artificial, as there is a considerable degree of overlap between them. Hypothetically, a drug conviction could result in a life without parole sentence, if it were the 'third strike' of a recidivist law. a) Life sentences for drug offenders A notable feature of modern American penal policy has been the large role that drug offences have played in the overall growth of the prison population.117 In the period 1985 to 1992 in particular, when the effects of the federally supported 'war on drugs' programme began to be felt most strongly, mandatory drug sentences were the single largest cause of the increase of the overall prison population in the United States.118

Malcolm Feeley and Jonathan Simon, "The New Penology: notes on the emerging strategy of corrections and its implications", (1992) 30 Criminology, 449. For a detailed account of how the politicians exploited this new national mood, see Lord Windlesham, Politics, Punishment, and Populism, New York: Oxford University Press, 1998. Michael Tonry, "Rethinking Unthinkable Punishment Policies in America", (1999) 46 UCLA Law Review, 1751. Mauer (n. 109). Franklin E. Zimring, "Imprisonment rates and the new politics of criminal punishment", (2001) 3 Punishment and Society, 161. 51

Chapter 2 The prime example of a State using life sentences for drug offences is the State of New York. The introduction of these sentences has been well documented. 119 It was the product of a deliberate campaign in the early 1970s. This campaign was built around the personality of Governor Nelson Rockefeller who, throughout his 15 years as Governor of the State of New York from 1958 onwards, put a great deal of emphasis on dealing with drug issues as a major part of his popular appeal. Rockefeller's personal attitude to the drug issue reflects dramatically the sea change in attitudes towards rehabilitation. At the beginning of his tenure Rockefeller favoured mass mandatory rehabilitation programmes for drug addicts. These were introduced on a large scale and implemented largely outside the criminal justice system or as alternatives to prison sentences. When these programmes were shown to be ineffective - in the late 1960s just as rehabilitationism was being attacked generally - Rockefeller adopted a dramatically different tack. In a complete reversal of his earlier policies he announced that rehabilitation of drug addicts was not working and that "an effective deterrent to the pushing of the broad spectrum of hard drugs"120 was required. In early 1973 he proposed mandatory life sentences for anyone convicted of selling any quantity of hard drugs. In addition, the possession of more than an ounce of such drugs was to be punished in the same way. Not only would parole be excluded for all such offenders but so would plea-bargaining, youthful-offender treatment and probation. Rockefeller's programme was introduced later in 1973, with some modifications but with the idea of mandatory life sentences largely intact. The sentences were not for life without parole but for life with various minima ranging from 25 years to as little as one year for dealing or possession, depending on the quantity of the drug concerned. A further law passed in the same year increased the minimum for offenders convicted a second time to six years.121 In a study of the moral panic surrounding the adoption of the New York drug laws Feeley and Kamin have shown that their effect was not quite as drastic as critics had feared.122 The criminal justice system has learnt to accommodate the new laws by allowing more extensive plea-bargaining and generally releasing sentenced offenders after they have served the minima. Minor amendments to the laws themselves have reduced the minima, facilitated plea-bargaining and excluded dealing in, and possession of, very small quantities of hard drugs from the ambit of life sentences completely. For those that have remained, release has become increasingly prompt. Close analysis of the statistics collected by the National Corrections Reporting Program in 1997 reveals that offenders sentenced to life imprisonment for drug-related crimes in New York made up a 119 120 121 122

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Pamela L. Griset, Determinate Sentencing: The Promise and the Reality of Retributive Justice, Albany: State University of New York Press, 1991. Rockefeller quoted by Griset (n. 119) 64. For a summary of these provisions, Human Rights Watch, Cruel and Usual: Disproportionate Sentences for New York Drug Offenders, New York: Human Rights Watch, 1997. Malcolm M. Feeley and Sam Kamin, "The Effect of 'Three Strikes and You're Out' on the Courts: looking back to see the future" in David Shichor and Dale K. Sechrest (eds.), Three Strikes and You're Out: Vengeance as Public Policy, Thousand Oaks: Sage, 1996, 165.

The United States of America staggering 44.1 percent of offenders released from life imprisonment for all offences throughout the United States of America in that year. The terms served by lifers for drug related offences in New York were short: an average of 3.4 years compared to the national average term of 6.4 years served before release for all offences nationally.123 Notwithstanding the adjustments and accommodations, life imprisonment persisted as a penalty for drug offences long after Governor Rockefeller left the political scene. It remains on the statute book. In 2001 Governor Pataki came forward with yet another controversial scheme to modify the drug laws in order to reduce their impact on the prison population.124 Notably though, even in his latest proposals the maximum of life sentences for both possession and dealing in certain kinds of drugs has remained in place. Presumably, the symbolic costs of abolishing it are too high. Behind this facade though, treatment programmes and administrative release discretion have quietly been reasserted. Even in its watered-down form the life penalty for drug offences still has a considerable impact on the overall population of lifers in New York. In 1992, the last year for which national figures of prison inmates serving life sentences were published in a form that gives a breakdown by offence and State, there were 3 277 persons serving life sentences for drug offences in the State of New York. These made up a third of all lifers in the State at the time.125 Life imprisonment for drug dealing and drug possession was of course not limited to New York. The same figures show that 24 of the 47 reporting States, as well as the District of Columbia and the Federal system, had offenders serving life sentences for such offences. Nationally life sentences for drug offenders have remained a significant part of the overall picture of life imprisonment with approximately 1 percent of all drug offenders sentenced annually continuing to receive life sentences.126 The 1991 decision of the US Supreme Court in Harmelin v Michigan,121 upholding the constitutionality of a Michigan Statute providing for a mandatory life without parole sentence for a first offender convicted of the possession of a large amount of a 'controlled substance', underlines the extent to which a mere assertion of the need for deterrence of what Justice Kennedy, writing for the plurality, called "a crime [that] threatened to cause grave harm to society,"128 could be used to justify penalties for drug related offences. Although the excesses of this law were subsequently blunted at State level by the reduction of the mandatory sentence by the Michigan Supreme Court to one of life with a 123 124

125 126 127 128

See Table 3. See press statement of Governor Pataki: "Governor proposes Drug Law Reform Act of 2001" . His critics have accused him of not going far enough and indeed making sentences for some categories of offenders even less flexible. See the reaction of the Lindesmith Institute at . See also <www.droptherock.org>. It is noteworthy that critics strongly support a renewed emphasis on a treatment-based approach. See Table 1. National Criminal Justice Reference Service (n. 5). 501 US 957 (1991). Ibid, at 870. See the further discussion of the shortcomings of Justice Kennedy's proportionality analysis in the text at n. 199 below. 53

Chapter 2 prospect of parole after ten years129 and by an amendment in 1998 that made the law less draconian,130 the virtually unrestricted national imprimatur of the Supreme Court for laws providing for life imprisonment for both the use and distribution of drugs, remains firmly in place. The impact of this decision was seen most clearly at Federal level where Congress in the Federal Death Penalty Act of 1994 increased the maximum penalty for particularly serious "continued criminal enterprise" offences involving drugs to the death sentence or life imprisonment "without the prospect of release".131 The result is that life without parole has effectively become the new maximum Federal sentence for these crimes, as the procedural barriers set for imposing the death penalty are severe and as there is in any event a strong possibility that the death penalty will be held to be unconstitutional if it were to be imposed in a case in which a homicide has not been committed as well. b) Life without parole Life without parole sentences came into prominence in the aftermath of the decision of the US Supreme Court in 1972 in Furman v Georgia 132 which appeared at the time to have abolished the death penalty. Although such life sentences had been imposed prior to the 1970s, relatively little attention appears to have been paid to them. However, in 1974 a somewhat unusual case led to the endorsement by the US Supreme Court of life without parole as an acceptable sentence. The case of Schick v Read133 concerned a convicted murderer, Schick, who had been sentenced to death but had his sentence commuted to life imprisonment by President Eisenhower. The commutation included a condition that Schick should never be released on parole. Schick argued that President Eisenhower had exceeded his powers by imposing this condition and that he should nevertheless be considered for parole. This argument was lent extra weight by the circumstance that by the time Schick's case reached the Supreme Court, the statute under which Schick had been sentenced to death had been struck down. Had Schick not had his sentence commuted, he would have been eligible for a life sentence with parole under the statute that replaced it. The Supreme Court, however, focused its attention largely on the power of the President to commute sentences and ruled that he was entitled to set a condition of this kind. In passing and without considering argument on the matter in any detail it affirmed the acceptability of a sentence of life without parole. This created a precedent. The result is subsequently that the sentence of life without parole has never been

129 130 131

132 133

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People v Bullock 485 NW 2d 886 (Mich 1992), discussed in the text at n. 204 below. Mauer (n. 109) 104. Section 6002 of the Federal Death Penalty Act of 1994 that amended sections 3591-3593 of the United States Code. For a detailed account of the passage of this legislation and of the place that drugs played in the penal politics of the time, see Windlesham (n. 115). (n. 103). 419 U.S. 256 (1974).

The United States of America challenged directly in the Federal courts,134 although its application to specific offences has been scrutinised. From the mid-1970s onwards life without parole laws began to be introduced widely, in the first instance as part of the general reconsideration of sanctions for the most serious forms of murder. This development was not derailed by the post-Furman decision of the US Supreme Court that the death penalty appropriately crafted was constitutionally acceptable. By 1996 34 States had provisions for life without parole sentences, of which 26 provided for the death penalty as well.135 In reality the State sentencing options for these offences were even more diverse: they included (1) death, or life without parole, or 'regular' life; (2) death or life without parole; (3) life without parole or 'regular' life; and (4) life without parole as the only available sentence.136 Support for life without parole has been widespread. It is important to emphasise that its primary protagonists have been those who wanted to add an additional harsh punishment to the arsenal of the State. Thus, for example, Danya Blair has argued at length that life without parole should be an option in Texas, although the law in that State already provides for a mandatory non-parole period of 40 years for all offenders convicted of capital felonies and not sentenced to death.137 Her arguments are typical of the genre.138 She starts by taking an individual case of someone who was released on parole after having committed murder and then re-offends. She then links this to the general critique of parole decision-making that flows from the suspicion, prevalent since the 1970s, of granting discretion to criminal justice professionals and concludes that "the release of an offender who presents a danger to society is not a rare mistake but rather an inherent flaw in an unworkable system".139 Blair casts the positive arguments for life without parole in terms of the traditional objectives of punishment. Retribution is one of these: it is emphasised that "life without parole is certainly not a lenient sentence".140 Governor Cuomo's characterisation of it as "death by incarceration" is quoted without irony, indeed with approval.141 Deterrence is seen as another ideal but it is dismissed on the basis that "there is little evidence that the punishments imposed on convicted offenders have any impact on the behaviour of

134 135 136

137 138 139 140 141

Julian H. Wright, "Life-without-parole: an alternative to death or not much of an alternative at all?" (1990) 43 Vanderbilt Law Review, 535. Keith Harries and Derral Cheatwood, The Geography of Execution: The Capital Punishment Quagmire in America, New York: Rowman and Littlefield, Lanham, Boulder, 1997. This typology is derived from Wright (n. 134) 540. Wright, however, includes two further variations where parole is simply prohibited for a fixed number of years. This is of course not 'life without parole' in the literal sense of the term . Danya W. Blair, "A Matter of Life and Death: Why Life Without Parole Should be a Sentencing Option in Texas", (1994) 22 American Journal of Criminal Law, 191. A similar focus on an individual case is used to introduce the oft-quoted overview of life without parole by Wright (n. 134) above. Blair (n. 137) 198. Ibid., 205. Ibid., at fn. 69. 55

Chapter 2 potential offenders".142 Incapacitation is given the place of prominence. Even a period of 40 years before parole may be considered is dismissed as providing insufficient assurance that an offender would have "aged out" sufficiently before release.143 Both death and life without parole are considered to result in "permanent incapacitation of offenders" and therefore ideal for this purpose. Life without parole is, however, portrayed as a sentence with practical advantages above the death penalty in that the latter is more expensive and rarely carried out. The argument is not made that the death penalty should be abolished, but simply that juries should be given the choice of imposing life without parole instead. One or the other should be mandatory. The case for life without parole is explicitly a case for harsher punishment generally. In Blair's view, life without parole should not only be applied to capital murderers but should also be available as an option for dangerous offenders convicted of other violent crimes and for "habitual offenders" convicted of three violent felonies. Throughout, there is little concern for the offender. The possibility of "rehabilitation" is dismissed as unrealistic. The position of elderly prisoners is glossed over with a cynical reference to the possibility of executive clemency. While parole boards are stigmatised in that they "operate in anonymity and routinely release huge numbers of prisoners", commutation by an elected executive is praised for its parsimony: "A system which makes one highly visible elected official accountable for the release of possibly violent offenders would naturally be less prone to err on the side of release and is thus preferable to a system which seems unable to avoid releasing violent criminals."144 The arguments in favour of life without parole have hardly been challenged in public debate. The reason for this is that after the reinstatement of the death penalty for murder opponents of capital punishment have generally been casting around for arguments that would persuade the public to change its broadly pro-death penalty views. One straw in the wind has been the opinion polls that have suggested that a majority of the public might be opposed to the death penalty if life without parole were a sentencing option.145 While thoughtful opponents of capital punishment, such as Hugo Adam Bedau,146 have pointed out that there may be problems with the strategy of accepting life without parole, they have been in the minority. Some abolitionists have simply noted that the support for life without parole means that public support for the death penalty is not absolute and have avoided engaging with the ramifications of life without parole at all.147 This has 142 143 144 145 146 147

56

Ibid., 202. Ibid., 206. Ibid., 207. For an overview of these opinion findings, see Phoebe C. Ellsworth and Samuel R. Gross, "Hardening of Attitudes: Americans' Views on the Death Penalty" in Bedau (ed.), (n. 20) 90. Hugo Adam Bedau, "The Controversy over Public Support for the Death Penalty: the Death Penalty versus Life Imprisonment" in Bedau (ed.), (n. 20) 88. See for example, Richard C. Dieter, Sentencing for Life: Americans Embrace Alternatives to the Death Penalty, Washington: The Death Penalty Information Centre, 1993.

The United States of America proved a difficult tightrope-walk and many abolitionists have adopted a conscious strategy of supporting life without parole and other harsh crime-control measures as a deliberate way of neutralising claims that abolitionists are 'soft on crime'.148 The task of abolitionists who support life without parole has also been made more difficult by procedural rules in some States that stipulate that, even where the law provides for life without parole as an alternative to the death penalty, sentencing juries are not told that if they were to impose a life sentence the offender will not qualify for release on parole. Court challenges to these strange rules have been successful only to the extent that the jury has to be told that the offender will not qualify for parole when the prosecution argues that the death penalty rather than life imprisonment should be imposed because of the danger that the offender could present in the future.149 A wider view, that the constitutional prohibition of cruel and unusual punishments requires that the jury be informed of all options in all cases, has not been accepted by the Supreme Court.150 Even where life without parole sentencing options are publicised, there is a widely-held belief that the offenders who are subject to them are released relatively early. Ironically this is not the case.151 Such prisoners can generally be released only if State Governors pardon them. The political costs of taking this step may be considerable. Former Governor Dukakis, the unsuccessful US presidential candidate in 1987, was excoriated for having defended the policy of granting furloughs to lifers, even though a lifer, Willie Horton, who had been released conditionally while Dukakis had been Governor of Massachusetts, had committed a further serious offence while out of prison.152 Since then, few State Governors have been prepared to take the risk of allowing the early release, in any form, of lifers who might cause political embarrassment if they re-offend.153 It is interesting to consider the arguments advanced by abolitionists in favour of life without parole. Some of these, like the possibility of later correcting a wrong conviction, appeal directly to the arguments against the death penalty itself, but others play on the perceived public desire for incapacitation and even vengeance.154 Abolitionists claim that offenders serving life without parole can be forced to work and pay restitution. There is 148

For a discussion of the different positions adopted within the anti-death penalty movement, see Herbert H. Haines, Against Capital Punishment: The Anti-Death Penalty Movement in America 1972-1994, New York: Oxford University Press, 1996, 135-143. 149 Simmons v South Carolina 512 US 154 (1994). 150 This view was expressed by two of the judges only, Justice Stevens with whom Justice Souter joined, in a separate concurring opinion in Simmons. Since then Simmons has been very narrowly applied in O'Dell v Netherland 521 US 151 (1997) and Ramdass v Angelone 530 US 156(2000). 151 James S. Liebman, "The Overproduction of Death", (2000) 100 Columbia Law Review, 2030. 152 For a discussion of the political impact of this decision, see Susan Estrich, Getting Away with Murder: How politics is destroying the criminal justice system, Cambridge: Harvard University Press, 1998, (Ch 3 "The Long Shadow of Willie Horton"), 65-92. 153 Jeanice Dagher-Margosian, "Life Means Life: Parole Rarely Granted on Non-mandatory Life Terms", (1994) 73 Michigan Bar Journal, 1184-1186. 154 See for example the "Advantages of LWOP + R", that is, life without parole plus restitution, listed by Raymond Paternoster, Capital Punishment in America, New York, Lexington Books, 1991, 277-281.

57

Chapter 2 little concern for the conditions under which lifers serve their sentences. One abolitionist argued, when making the case in favour of life sentences as an alternative to the death penalty, that life sentences were "in fact a 'civil' death penalty" and that for lifers: "The prison is their cemetery, a six by nine-foot cell their tomb. Their freedom is interred in the name of justice. In effect, they give their civil lives for the natural lives they have taken. No criminal deserves a harsher punishment than this."155 Abolitionists emphasise how little chance of release there is for such offenders, and record as the strength of life without parole that it will involve less elaborate trials, as the defence counsel "will be less likely to use every available legal manoeuvre at their disposal".156 The result will be that prosecutors are more likely to seek life without parole sentences and juries to impose them. In the course of making these points in favour of life without parole, abolitionists find themselves arguing not only against parole but also in favour of restricting the powers of commutation to allow early release. Although those opposed to the death penalty may be thought to limit their support of life without parole sentences to murder, that is not necessarily the case. One argument that 'tough' abolitionists are encouraged to use is that the savings on death can be used to ensure the incarceration of violent offenders for longer periods.157 This fits perfectly with the agenda of those who favour the use of life without parole as a wide-ranging incapacitatory sentence. Again, the writings of Blair can serve as an example: she calls for the extension of life without parole by making it an additional optional penalty for those convicted of particularly violent offences other than capital offences. The fact that life sentences with restrictions on parole for up to 30 years can be passed for such offences is deemed to be insufficient "because preventing violent crime should be our goal and we should not have to wait until an offender commits capital murder before we can permanently separate him from his potential victims".158 c) 'Three strikes and you are out' The movement to impose life sentences from which there is little or no prospect of release on recidivists is the third distinguishing feature of the contemporary approach to life imprisonment in the USA. As we have seen, life sentences for recidivists had long been a feature of American penal policy, albeit by the end of the 1970s not a prominent one. In 1980, when the Supreme Court first examined the constitutionality of statutes that provided for life imprisonment for offenders convicted of a third non-violent felony, only

155 156 157 158

58

Robert Johnson, "An Open Letter to the Governors of States with the Death Penalty" (1990) quoted in Haines (n. 148) at 137. Paternoster (n. 154)279. Haines (n. 148)182-183. Blair (n. 137)209.

The United States of America three States still had such laws.159 Between 1993 and 1995 24 States and the Federal Congress adopted some form of new legislation mandating life imprisonment for a third offence, variously defined, as a move to 'three strikes and you're out'.160 The quick spread of the legislation that conformed to the baseball metaphor suggests that the public was prepared to accept enthusiastically laws that would lead to sentences of life without parole or at least a very long period before parole was considered ('out') after conviction for three offences of a specified kind ('three strikes'). The history of the movement is relatively clear: an initiative in the State of Washington in direct response to a gruesome murder there led to the adoption of a law that provided for a life sentence for a third serious felony. The law itself was not unusual, in that very long sentences, often sentences of life imprisonment, could already be imposed for previous convictions for serious violence. What was unusual was the public enthusiasm for the law that was embodied in the 'three strikes' slogan and the explicit linking of the third offence to a life without parole sentence. Popular (and populist) enthusiasm for 'three strikes' reached its apogee in California in 1994, where again two killings by released offenders provided the focal point for the drive for the law. In California the initiative was taken not by professional politicians but by the father of one of the victims, Bruce Reynolds. The measure that he proposed was extraordinarily wide in that it allowed any felony to count as a third strike. It also attempted to restrict the power of the prosecution, and to eliminate entirely the power of the court, to discount an earlier strike, that is a relevant previous conviction. Reynolds, who distrusted professional politicians generally, was not amenable to entertaining modifications to his proposal, which, although promoted as a means of punishing violent crime harshly and incapacitating violent offenders, would have a much wider impact, in that relatively minor offenders could be caught in its net. Practical politics in California made it difficult for any of the established political groupings in the State to attempt to modify or ameliorate his proposals. His ideas were enacted substantially unaltered into the Californian Penal Code. In addition, they were supported by a large majority of the public in a referendum that endorsed a substantially similarly worded proposition, thus making it very difficult for it to be amended in any way.161 Subsequent research suggests that the Californian 'three strikes' initiative struck a particular chord with the public.162 They supported it primarily as a form of symbolic 159

160 161

162

Rummel v Estelle 445 US 263 (1980) at 280 discussed below. There were, however, more States that had laws allowing life sentences to be imposed on 'habitual offenders': see Michael G. Turner et al., '"Three strikes and you're out' legislation: a national assessment", (September 1995) 59 Federal Probation, 16. Ulrike Grasberger, "Three Strikes and You are Out' Zu neuen Strafzumessungsgrundsatzen bei Wiederholungstatern", (1998) 110 Zeitschrift fur die gesamte Strafrechtswissenschaft, 160. There are many very full secondary accounts of this process. See, for example, Michael Vitiello, '"Three Strikes' and the Romero Case: The Supreme Court Restores Democracy", (1997) Loyola of Los Angeles Law Review, 1643-1708; Franklin E. Zimring, Gordon Hawkins and Sam Kamin, Punishment and Democracy, Three Strikes and You're Out in California, Oxford: Oxford University Press, 2001, 4-7. Tom R. Tyler and Robert J. Boeckmann, "Three Strikes and You Are Out, but Why? The Psychology of Public Support for Punishing Rule Breakers", (1997) 31 Law and Society Review, 237. 59

Chapter 2 resistance against what they perceived as the decline in social cohesion and morality. The claim made in the overt rhetoric about the new law, that it was a device for dealing with dangerous offenders in the face of a criminal justice system advised by experts, which was too liberal in exercising its discretion and let offenders off lightly, was a less important ground for supporting it. Ideally, the new law would automatically incapacitate a whole class of recidivist offenders, who were portrayed as inherently dangerous and violent, without any expert being able to 'meddle' in the process. Under these circumstances attention to the detail of either the impact of the law on the operation of the criminal justice system or its potential unfairness to offenders was not a priority for the general public - or for politicians having to deal with the initiative at a time of political uncertainty in the State. The publicity given to the 'three strikes' initiatives in California served as a spur to politicians in other jurisdictions where similar initiatives were already taking place.163 Most prominently, President Clinton explicitly endorsed 'three strikes' in his State of the Union address in 1994 and Congress passed legislation providing for it in the same year, thus making it a feature of Federal law.164 Broadly speaking, both the Federal law165 and those of the individual States differed from the 'three strikes' provision in California in one crucial feature: they defined the 'strikes', and in particular the 'third strike', that were to be taken into consideration very narrowly.166 For this reason, a careful critic may have expected that they would have relatively little impact on the actual number of people sentenced to life imprisonment.167 Scholarly analysis has confirmed that they have had a limited impact and has revealed that in most States (including California) there were already laws in place that allowed for repeat offenders to be imprisoned for extended periods including, in some instances, life sentences.168 Nevertheless, combined with Federal 'truth in sentencing legislation', the 'three strikes' initiatives have contributed to acceptance that life imprisonment, even where it is strictly implemented, is a generally unproblematic sentence. Critics of the Californian 'three strikes' law, which on the face of it did have considerable bite, initially claimed that it would have a major, even devastating, impact on the operation of the Californian criminal justice system.169 Much was also made of 163 164 165 166 167

168 169

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For an overview of the media portrayal, see Ray Surette, "News from Nowhere Policy to Follow: Media and the Social Construction of 'Three Strikes and You're Out'" in Shichor and Sechrest (n. 122) 177-202. Lord Windlesham, (n. 115) 76-145. See Nkechi Taifa, "'Three-strikes-and-you're-out' - mandatory life imprisonment for third time felons", (1995) 20 University of Dayton Law Review, 717. For a list that gives the important details of these statutes, see Michael Vitiello, "Three Strikes: Can we Return to Rationality?", (1997) 87 Journal of Criminal Law and Criminology, 395, appendix B. As Jonathan Simon has commented perceptively: "Politicians pass laws expressing popular punitiveness while relying on the managerial skill of penal professionals to keep the costs down by applying the techniques and strategies of the new penology." Jonathan Simon, "Sex Offenders and the New Penology", (1998) 4 Psychology, Public Policy and Law, 455. James Austin et al., "The impact of 'three strikes and you're out'" (1999) 1 Punishment and Society, 131. Keith C. Owens, "California's 'Three Strikes' Debacle: A Volatile Mixture of Fear, Vengeance and Demagoguery will Unravel the Criminal Justice System and Bring California to its Knees", (1995) 25 South

The United States of America specific cases where the statute seemed to have obviously unfair results: the life sentence for the theft of a slice of pizza.170 Its implementation has therefore been subject to close scrutiny. The empirical finding is that while it has not been without impact in the direct sense of increasing the numbers of people subject to life sentences on a third strike,171 the impact on the number of cases going to trial and on the prison population has not been as large as predicted.172 Moreover, the impact has been uneven, as prosecutors have used their remaining discretion in varying ways in different prosecutorial districts. This allows prosecutors to request a court to strike prior convictions from the record and thus not to register them as 'strikes' when they believe it is in 'the interest of justice' to do so. The fact that the prosecutors have this discretion, which enables them to ensure that the mandatory sentences are avoided, while the law appeared not to allow the courts to intervene in this way unless the prosecution had requested it, led to an important constitutional challenge to this aspect of the legislation. In People v Superior Court (Romero)113 the California Supreme Court unanimously upheld the challenge and ruled that the separation of powers doctrine required that the 'three strikes' legislation be interpreted to give the court the power to strike such previous convictions from the record, even where the prosecutor had not requested it. If it were not interpreted in this way, the California Supreme Court commented, it would give the prosecutors a power over judicial decision-making on sentencing, which would be contrary to the doctrine of separation of powers. It is noteworthy just how narrow the basis of this decision was. The Court did not find that the legislature had given the courts the power to determine sentences individually or even to intervene indirectly to ensure that the offender did not qualify for a mandatory sentence. It simply ruled that an arrangement where such power existed, but could only be exercised with prosecutorial approval, would be unacceptable. The formal justification for upholding the three strikes provision while giving the court the power to strike out, was that the provision did not remove the power to strike out previous convictions that was explicitly granted to the courts in another general part of the California Penal Code. It is possible to dismiss the jurisprudence of the California Supreme Court on the three strikes legislation, as one group of critics has done, as deserving "much higher marks for practical impact and political bravery than for the quality of its judicial reasoning".174 Certainly, as the same critics point out, there was no attempt to develop a coherent picture of the penal theory that underlay its adoption and to apply that in the interpretation - but, one may add, that may be because the Californian strike legislation Western University Law Review, 129; Loren L. Barr, "The 'Three Strikes Dilemma: Crime Reduction at Any Price?", (1995) 36 Santa Clara Law Review, 107; Christine Markel " A Swing and a Miss: California's Three Strikes Law", (1996) 17 Whittier Law Review, 651. Owens (n. 169) 130. The number of offenders receiving enhanced sentences after a second strike has been even larger: Zimring, Hawkins and Kamin (n. 161) 80. Austin (n. 168) 144-149. 53CalReptr2d789(1996). Zimring, Hawkins and Kamin (n. 161) 131. 61

Chapter 2 went beyond the bounds of conventional theories of punishment. What is beyond dispute is that the decision in Romero had an impact beyond the mere formal assertion of judicial independence. It enabled trial judges to avoid imposing life sentences for relatively minor third offences. It was also a challenge to the proponents of the third strike initiative. Reynolds and his supporters took up the challenge, but interestingly enough, failed to make much headway. Bills that purported to undo the result of the Romero judgment were introduced in the Californian legislature but not passed, and a ballot to change the Constitution of California was threatened but never took place.175 In practice judges have exercised their newfound right to strike out prior convictions relatively sparingly and the importance of this particular issue has receded. A wider question about judicial intervention remains: the power that the Californian Supreme Court claimed for judges was ultimately the power not to impose life sentences that would be grossly disproportionate to the crime committed by the offender. In a sense the outcome was that the trial judge would guarantee that life sentences would not be imposed for the like of stealing a slice of pizza. Why then in asserting this power did the Californian Supreme Court in the Romero case not turn directly to arguments about the constitutional proportionality of such sentences?176 To answer this question we must examine more closely the constitutional doctrine on the proportionality requirements for life sentences, which had become settled law by the early 1990s, thus predating many of the most recent developments. 4. LIFE IMPRISONMENT AND THE CONSTITUTION Thus far I have described (as a product of wider social processes) various aspects of the growth of life imprisonment and of its implementation, in many instances in the form of longer terms to be actually served in prison. This has been done without considering closely the potential impact of these developments on the constitutional right to freedom from cruel and unusual punishment guaranteed by the Eighth Amendment and related constitutional provisions dealing with due process rights. Such an impact could of course be enormous, for the function of a constitution with a justiciable Bill of Rights is to prevent abuses of the designated rights. If, therefore, a form of punishment were found to be inherently unconstitutional, it would have to be scrapped completely. In American constitutional penal jurisprudence this direct challenge was most famously presented to the death penalty in the case of Furman v Georgia177 in 1972. Although a majority of the court struck down the death penalty statute challenged in that case, only two of the five judges in the majority found that capital punishment was inherently cruel and unusual. The remaining three were only prepared to hold that the death sentence, as imposed under Ibid. Such arguments had been rejected by Californian courts below the level of the California Supreme Court. See text at n. 213 below. (n. 103). 62

The United States of America the challenged statute, was unconstitutional because the procedures for its imposition ran the risk of allowing it be imposed in an arbitrary way and in instances where it might be cruel and unusual on the more limited ground that it was disproportionate to the crime for which the offender had been convicted in the specific instance. The result was that many States amended their procedures and defined more closely the crimes for which the penalty of death could be imposed. These changes were duly upheld by the Supreme Court in 1976,178 with the result that the death sentence, for murder at least, has largely been immune to constitutional challenge ever since. The determination that capital punishment was not inherently cruel and unusual made it much harder even to consider whether life imprisonment was inherently constitutional. This difficulty went much deeper than the tactical support of death penalty opponents for alternative sentences of life without parole. One manifestation of the extent to which the fundamental constitutionality of life imprisonment was not on the analytical agenda was the reference that was made to it in passing by those judges who emphasised that capital punishment was inherently cruel and unusual because it infringed the human dignity of the offender. By emphasising that death was different and by substituting rhetorically life imprisonment as an alternative that would serve the function of deterrence even for the most serious crimes,179 they effectively put it beyond the analytical pale. In California v Ramos Justice Marshall even endorsed a form of life imprisonment, accompanied, if necessary, by solitary confinement, as the sentence that would "fully accomplish the aim of incapacitation".180 From the perspective of the enforcement of constitutionally anchored human rights the flaw in the analysis of the majority in the Furman case was the too easily made concession, that a punishment that enjoyed public support could therefore not be cruel and unusual. The fact that the American public continued to support the death penalty was hard to deny. However, Zimring and Hawkins show that, by the time the decision in Furman v Georgia was being taken, 'standards of decency' had evolved in most Western countries to the point that capital punishment was seen as an inherent infringement of human dignity. It was the substance of what constitutes a violation that the court should have attempted to address: As Zimring and Hawkins explain: "If public opinion as interpreted by the 'elected representatives of the people' conclusively determines the range of punishments available, it is difficult to understand the functions of a prohibition on cruel and unusual punishment or what could constitute a violation of the Eighth Amendment in this context. What is the

178 179

180

Gregg v Georgia 428 US 153 (1976); Proffitt v Florida 428 US 242 (1976). See the detailed discussion of life imprisonment as a deterrent in Furman v Georgia (n. 103) at 346-354 by Justice Marshall. See also per Justice Marshall in Greg v Georgia (n. 178) at 238: "It is inconceivable that any individual concerned about conforming his conduct to what society says is 'right' would fail to realize that murder is 'wrong' if the penalty were simply life imprisonment." 463 US 992 (1983) at 1023. 63

Chapter 2 significance of a curb on majority and legislative will that cannot be employed to check or restrain that will?"181 Zimring and Hawkins argue convincingly that, had the Supreme Court adopted the position that capital punishment was inherently contrary to human dignity, as understood in civilised rather than populist terms, its decision would eventually have been accepted by the American public. If that had happened, the jurisprudential analysis of the constitutionality of life imprisonment would have developed very differently too. As it was, the only type of direct challenge to a sentence of life imprisonment that has been taken seriously in constitutional terms in the United States has been the argument that life imprisonment for a particular offence was grossly disproportionate to the crime. The argument could be made that life imprisonment was therefore cruel and unusual in the second sense that had been recognised in general terms since the early decision in Weems and which had been applied to life imprisonment in State courts, most prominently by the California Supreme Court in In re Lynch in the early 1970s. The 1997 decision of the United States Supreme Court in Coker v Georgia182 underlined the importance of constitutional proportionality analysis of punishment more clearly than ever before. It held that capital punishment for the rape of an adult woman was an excessive penalty that would be disproportionate under all circumstances. The question now was whether such a proportionality test would apply to life imprisonment too. In 1980 in Rummel v Estelle183 the United States Supreme Court was confronted by a direct challenge of the constitutional proportionality of a life sentence. The petitioner, Rummel, had been sentenced to a mandatory term of life imprisonment in terms of the recidivist statute in Texas after having committed a felony for the third time. His theft with false pretences had involved US $120.75, while his two previous crimes of dishonesty had involved US $80 and US $28.36 respectively. Rummel argued that the effect of applying the mandatory life sentence to a non-violent, petty offender like him was to produce a constitutionally disproportionate sentence that constituted cruel and unusual punishment. A deeply divided Supreme Court rejected the petition. Justice Rehnquist, who wrote the opinion in which the other four members of the majority joined, sought to limit the scope of the crimes to which the proportionality test applied to the extraordinary punishment considered in Weems and to the death penalty. He postulated that "the length of a sentence actually imposed is purely a matter of legislative prerogative", but immediately qualified this in a footnote, noting that:

181 182

183

64

Franklin E. Zimring and Gordon Hawkins, Capital Punishment and the American Agenda, Cambridge: Cambridge University Press, 1986, 59. 433 US 458 (1977). See also the later decision Enmund v Florida 458 US 782 (1982) in which a death sentence was held to be disproportionate when imposed on an offender who merely participated in a felony in which a murder occurred. (n. 159).

The United States of America "This is not to say that a proportionality principle would not come into play in the extreme example mentioned by the dissent, if a legislature made overtime parking a felony punishable by life imprisonment."184 In holding that the life sentence imposed on Rummel was not demonstrably disproportionate, Justice Rehnquist made much of the difficulty of comparing sentences and took into account that the sentence might well be lighter as the offender could be considered for parole. The four-member minority, whose views were expressed in an opinion written by Justice Powell, asserted that the constitutional proportionality test had been recognised to encompass non-capital sentences. Where life imprisonment was involved there was no logical basis to limit it to the extreme example of a life sentence for a parking offence, which the majority had conceded would raise proportionality issues. The minority analysed the parole issue carefully. Justice Powell pointed out that the Supreme Court itself had recently ruled in Greenholz v Nebraska Penal Inmates165 that a convicted person had "no constitutional or inherent right to be conditionally released before the expiration of a valid sentence".186 The Texas parole system did not create such a right, nor was the practice in Texas one of automatic release following a recommendation of parole. The fact that Rummel might be pardoned was equally irrelevant. Justice Powell emphasised that the Supreme Court had "never before failed to examine a prisoner's Eighth Amendment claim because [of] the speculation that he might be pardoned before the sentence was carried out".187 He proceeded to apply the same tripartite test for disproportionality that had been used in In re Lynch and had subsequently been applied to the Eighth Amendment of the US Constitution in non-life imprisonment cases. On the basis of this test - viz. (i) the nature of the offence, (ii) the sentence imposed for the commission of the same crime in other jurisdictions and (iii) the sentence imposed for other crimes in the same jurisdiction - Justice Powell found that Rummel's sentence was indeed grossly disproportionate. He concluded that while it was true that the Court had previously invalidated a mandatory life sentence under the Eighth Amendment, the principles underlying the earlier decision on proportionality and the fact that they were dealing with a "living Constitution" required this development.188 The development came soon. In 1983 in Solera v Helm]S9 the Supreme Court had to decide whether a discretionary life sentence with no provision for parole was cruel and unusual if imposed on an offender convicted of a seventh, relatively minor, non-violent offence. Again the Court was split by five votes to four. This time, however, it held that the sentence was grossly disproportionate and therefore unconstitutional. Justice Powell, who in this instance wrote the majority opinion, attempted to distinguish Helm's situation At 274 (internal references omitted). (n. 111). At 7. Rummel v Estelle (n. 159) at 294. At 307. 463 US 277 (1983). 65

Chapter 2 from that of Rummel in the earlier case, arguing that the absence of the possibility of parole for Helm meant that his sentence was more severe. Given his own opinion in the earlier case, this was a somewhat ironic attempt to hoist the earlier majority with its own petard, rather than a serious attempt to distinguish a discretionary life sentence with provision for parole, which was allegedly informed by rehabilitative concerns, from the incapacitatory life without parole sentence, which could only be ended by commutation. Justice Powell, now writing for the majority, put forward essentially the same arguments that he had propounded for the minority in Estelle v Rummel about the scope of the constitutional requirement of proportionality and applied the same tripartite test to determine whether this sentence was in fact disproportionately severe. The majority opinion drew an angry and sarcastic response from Chief Justice Burger who wrote the judgment in which the minority joined.190 He asserted the limits of the constitutional proportionality requirement and the undesirability of not following recent precedent. He added little, however, to the understanding of the constitutional limits on the imposition of life imprisonment. Solem v Helm did not settle the constitutional law on life imprisonment. In 1991 in Harmelin v Michigan191 the Supreme Court was again called upon to decide whether a life sentence, this time a mandatory sentence of life imprisonment without parole imposed on a first offender for possession of a large quantity of a dangerous drug,192 was constitutional. Once again split by five votes to four, the Court decided that the sentence was not cruel and unusual in terms of the Eighth Amendment. The minority judgment of Justice White in essence simply applied the tripartite test for constitutional disproportionality that had been accepted in Solem v Helm and concluded that the sentence failed this test.193 Had it been followed by the Court, one might have interpreted it as a further step in the 'evolving standards of decency', for it held that the legislation providing for the mandatory life sentence for possession of a large quantity of dangerous drugs was unconstitutional because not all persons who possessed such quantities of the drugs deserved life imprisonment. In this respect the minority judgment was an elaboration on Solem v Helm, which had dealt only with the appropriateness of the life sentence that the sentencing court in it is discretion imposed on the individual offender in the light of the particular circumstances of that case. An interesting judicial critique of the 'life without parole' aspect of the mandatory sentence is contained in the concurring minority opinion of Justice Stevens (joined by Justice Blackmun). Justice Stevens noted that, while the sentence was not in the same category as the death penalty, "a mandatory sentence of life imprisonment without the possibility of parole does share one important characteristic of a death sentence: The offender will never regain his freedom. Because such a sentence does not even purport to serve a 190 191

192 193

66

At 304-318. (n. 127). 672 grammes of cocaine. At 1009-1027.

The United States of America rehabilitative function, the sentence must rest on the rational determination that the punished [and here Justice Stevens quoted the words of Justice Stewart about the death penalty from Furman v Georgia] 'criminal conduct is so atrocious that society's interest in deterrence and retribution wholly outweighs any considerations of reform or rehabilitation of the perpetrator.' Serious as this defendant's crime was, I believe it is irrational to conclude that every similar offender is wholly incorrigible."194 The majority not only found that Harmelin's sentence did not infringe the Eighth Amendment but argued for reduced judicial scrutiny of the proportionality of prison sentences. Most extreme in this regard was Justice Scalia, with whom Chief Justice Rehnquist joined. Justice Scalia re-examined the history of the Eighth Amendment and concluded flatly that it contained no general constitutional proportionality guarantee. He restricted the evolutionary development of the proportionality requirement to the sentence of death. Wider language in Weems and other cases should not be followed and the majority judgment in Solem v Helm should be overruled where it propounded a general proportionality requirement. Repeating the mantra that 'death is different', Judge Scalia refused to consider at all whether a life sentence (with or without parole) for Harmelin was proportional. He also rejected the argument that the mandatory nature of the life sentence for the possession of drugs in the Michigan statute was open to constitutional challenge because it precluded the consideration of the individual circumstances of the offence and the offender. Once again the unique status of the death penalty was the justification: Justice Scalia explained: "Our cases creating and clarifying the 'individualized capital sentencing doctrine' have repeatedly suggested that there is no comparable requirement outside the capital context, because of the qualitative difference between death and all other penalties .... "It is true that petitioner's sentence is unique in that it is the second most severe known to the law; but life imprisonment with possibility of parole is also unique in that it is the third most severe. And if petitioner's sentence forecloses some 'flexible techniques' for later reducing his sentence, it does not foreclose all of them, since there remains the possibilities of retroactive legislative reduction and executive clemency. In some cases, moreover, there will be negligible difference between life without parole and other sentences of imprisonment - for example, a life sentence with eligibility for parole after 20 years, or even a lengthy term sentence without eligibility for parole, given to a 65-year-old man. But even where the difference is the greatest, it cannot be compared with death. We have drawn the line of required individualized sentencing at capital cases, and see no basis for extending it further."195

At 1028 (internal references omitted). At 996 (internal references omitted; emphasis in the original). 67

Chapter 2 This proposition about individualisation of life sentences not being a constitutional requirement is particularly important, for, other than the result, it was only in this part of the judgment of Justice Scalia in which the other three judges who made up the majority concurred. Justice Kennedy, who wrote for this group, accepted that the Eighth Amendment encompassed a narrow proportionality test that in principle could apply to the proportional severity of prison sentences. However, he held that the sentence imposed on Harmelin was not so disproportionate as to constitute cruel and unusual punishment. This conclusion was achieved in the first instance by emphasising a number of general principles that restrict proportionality analysis: "the primacy of the legislature, the variety of legitimate penological schemes, the nature of [the] federal system and the requirement that proportionality review be guided by objective factors".196 These principles were then used to inform a "final one": "The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are 'grossly disproportionate' to the crime."197 This restricted standard was then applied narrowly: the tripartite test recognised in Solem v Helm was not fully invoked. Justice Kennedy simply postulated that drugs presented such a severe threat of harm to society that life without parole, the heaviest sentence available in Michigan, could be imposed for possession of a large quantity. There was no clear analysis of precisely what the major threat that drugs posed to society was198 or of to what extent a possession offence, of which Harmelin was convicted, contributed to that threat. Moreover, the conclusion was reached without the enquiry demanded by the other two legs of the tripartite test, viz. sentences imposed for the commission of the same crime in other jurisdictions, and sentences imposed for other crimes in the same jurisdiction. Such an inquiry would have shown that the penalty was uniquely heavy in the US and that only first-degree murder and dealing in the same drugs were punished with life without parole in Michigan.199 Justice Kennedy dismissed the additional attack on the mandatory nature of the life sentence in this case in terms similar to Justice Scalia with whom he and his colleagues had concurred on this point. He also attempted to play down the injustice (possibly even gross disproportionality?) that could result from the mandatory sentencing law by claiming that the Michigan scheme possessed mechanisms for consideration of individual circumstances. "Prosecutorial discretion before sentence and executive or legislative clemency afterwards provide means for the State to avert or correct unjust sentences," he noted.200 196

197 198 199 200

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At 1001. Ibid. See Douglas Husak and Stanton Peele, '"One of the Major Problems of Our Society': Symbolism and Evidence of Drug Harms in U.S. Supreme Court Decisions", (1998) 25 Contemporary Drug Problems, 191. See Steven Grossman, " Proportionality in Non-Capital Sentencing: The Supreme Court's Tortured Approach to Cruel and Unusual Punishment", (1995-96) 84 Kentucky Law Journal, 107. Harmelin v Michigan (n. 127) at 1008.

The United States of America What this last proposition cynically ignores is that the Supreme Court itself had already largely removed these elements of the criminal justice system from judicial supervision. In Bordenkircher v Hayes201 it had accepted prosecutorial discretion to reindict an offender under a law that required a life sentence where the accused had refused to plead guilty to a lesser charge, which would have resulted in a sentence of five years. In the exercise of executive clemency too the Court had refused to recognise due process rights for lifers and other prisoners. To depend on these forms of intervention to somehow introduce proportionality into the system meant that the Court was relying on processes where an offender would not be able to appeal effectively to the courts to ensure that an unjust sentence would be 'corrected'. In other words the Constitution would not protect them. The fact is that Harmelin v Michigan remains the leading case on life imprisonment in the United States of America.202 It is a complicated judgment to interpret. It is true that in its result it did not end proportionality analyses of the constitutionality of sentencing laws entirely. Seven of the nine judges continued to support some form of recognition of the principle. However, Justice Kennedy's judgment, which has become the leading one, as it both supports proportionality and agrees with the judgement of the Court, adopted such a narrow approach that it was thought to have totally undermined proportionality analyses.203 This was particularly true in the Federal courts where, until very recently, no constitutional proportionality challenge to any sentence of imprisonment had been successful. 204 However, in late 2001 in the case of Andrade v Attorney General of the State of California 205 the Ninth Circuit of the United States Court of Appeals was confronted by an appeal, based directly on constitutional disproportionality, against two 434 US 357 (1978). In Riggs v California 521 US 1114 (1999) the Supreme Court refused to hear a case in which the petitioner had been sentenced to a mandatory term of life imprisonment with a 25-year minimum, where his 'third strike' offence had been the theft of some vitamin pills from a supermarket. Justice Breyer dissented from this decision. Justice Stevens, with whom Justices Souter and Ginsberg joined, did not formally dissent but raised the concern that this might be a case of constitutional disproportionality that the Supreme Court should consider. They were of the opinion though, that the Supreme Court should not intervene then but that it would be prudent for it to await review by other courts before deciding whether it would be necessary for it do so. In February 2001 a similar matter came before the Supreme Court in Druden v California 148 L Ed 2d 1027 (2001). Again the Supreme Court declined to hear the matter. However, Justice Souter, with whom Justice Breyer joined, dissented from this decision. In his view the Supreme Court should wait no longer: "The issue is serious, the state courts have had adequate opportunity to consider it, and the stakes are substantial.", Justice Breyer noted. Grossman (n. 199). See Kathi A. Drew and R. K. Weaver, "Disproportionate or Excessive Punishments: Is There a Method for Successful Constitutional Challenges?", (1995) 2 Texas Wesleyan Law Review, 1; Wayne A. Logan, "Proportionality and Punishment: Imposing life without parole on juveniles", (1998) 33 Wake Forest Law Review, 681; Olivia O. Singletary, "Harmelin v Michigan: The Most Recent Casualty in the Supreme Court's Struggle to Develop a Standard for Eight Amendment Proportionality Review", (1993) 54 Ohio State Law Journal, 1253-4. 270 F 3d 743 (CA 9 (Cal) 2001). 69

Chapter 2 sentences, each of life imprisonment with a minimum term of 25 years, imposed in terms of the 'three strikes and you're out' legislation. Andrade had been convicted of two counts of stealing a total of nine videos from two stores. Normally, these would have been misdemeanours for which the maximum prison sentence would have been a term of six months. However, because of his prior record (for a series of non-violent offences), these offences were regarded as so-called 'wobblers' and in terms of California law could be charged as felonies. The prior record of the offender was also sufficient for these offences to be regarded as third strikes. The resultant two life sentences, each with a minimum term of 25 years, meant that the offender was being sentenced to an effective minimum term of 50 years. Andrade was a 37 year old heroin addict who stole to support his habit. The minimum term was longer than the average life expectancy for all males of the age of the offender. Under these circumstances, the majority206 of the Court was prepared to entertain the argument that the prohibition on cruel and unusual punishment in the Eighth Amendment "does not permit the application of a law, which results in a sentence grossly disproportionate to the crime".207 Its simple conclusion was that "Andrade's sentence of life in prison with no possibility of parole for 50 years is grossly disproportionate to his two misdemeanor thefts of nine videotapes, even when we consider his history of non-violent offences".208 The careful analysis that the Court of Appeals undertook of the leading decisions of the Supreme Court, particularly Solem v Helm and Harmelin v Michigan, showed that there was still room for manoeuvre in applying their rulings in proportionality inquiries. The argument with respect to Solem v Helm was one of analogy. The Court found that Andrade, like Helm, had effectively been sentenced to life without parole for a petty offence and that, as for Helm, the sentence was disproportionately heavy for the latest crime of which he had been convicted, even if that crime was regarded as aggravated because it was repetitive. To the extent that Solem v Helm was still binding authority, it supported the finding that Andrade's sentence was constitutionally disproportionate.209 Conversely, the crimes for which Andrade was being sentenced were far less serious than the possession of a large quantity of the dangerous drug of which Harmelin had been convicted. In this different context the Court of Appeals deployed the revised tripartite test for gross proportionality developed by Justice Kennedy in Harmelin v Michigan. The Court of Appeals was able to hold that the first element, that is the threshold comparison of the harshness of the penalty and the gravity of the crime, revealed the potential existence of gross disproportionality. It could then proceed to apply the further two elements of the tripartite test. These were the intrajurisdictional and interjurisdictional comparisons, which Justice Kennedy did not apply in Harmelin's case, as in his judgement Harmelin did not meet the threshold requirement that Justice Kennedy himself 206

207 208 209

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Judge Paez, with whom Chief Judge Schroeder joined. Judge Sneed dissented, primarily on the basis that deference to the legislature required that the Court should not strike down a sentence aimed at incapacitation, even where it was unduly harsh: Ibid. Ibid. Ibid. Ibid.

The United States of America had decreed needed to be met in order to allow a further inquiry. Primarily because in this instance Andrade had been convicted only of two misdemeanours, which somewhat artificially were regarded as felonies in a manner unique to California, the Court of Appeals was able to hold that the prescribed comparisons supported a finding of gross disproportionality of sentence.210 The Court of Appeals was careful to emphasise that its finding did not amount to a declaration that the entire Californian 'three strikes and you're out' law was unconstitutional, but only that Andrade's sentence contravened the Eighth Amendment. It may well be argued that as a precedent it is limited to the case of 'wobblers', where the redefinition of misdemeanours as felonies results in the imposition of mandatory life sentences. It is also too early to know whether the Supreme Court will give this analysis its approval.211 Nevertheless, the fact that an argument that a sentence of life imprisonment is so disproportionate to the crime committed that it should be set aside on constitutional grounds, is itself significant. In the individual States such challenges had some limited successes at a slightly earlier stage. One such was, ironically, in Michigan, where the mandatory life without parole law sentence under the same drug law under which Harmelin was prosecuted was successfully challenged in terms of the State Constitution.212 This success was partial only, as it applied solely to the mandatory sentence of life without parole for possession and then only to the extent that sentence was reduced by the Michigan Supreme Court to life with a ten-year minimum period before parole could be considered. However, also at State level successful challenges of this kind have been very rare.213 5. JUVENILES In two other areas of life imprisonment law the declining salience of constitutional proportionality requirements has had a major impact. The first of these concerns sentences of life imprisonment for juveniles. American law has long allowed relatively harsh sentences for young offenders. These include the death penalty, which, contrary to international law, may be imposed on offenders who committed murder when they were under the age of 18 years. In the death penalty cases involving juveniles however, proportionality analysis has been applied and the Supreme Court has held that 16 years at the time of the commission of the offence is the absolute minimum age below which the death sentence may not be imposed.214 210 211 212 213

214

ibid. For procedural developments, see n. 202 above. People v Bullock (n. 129). A sign of their relative decline is that in California no proportionality challenge in terms of the State Constitution against the most inclusive of the 'three strikes' laws has succeeded: See, for example, People v O'Roark 52 Cal 870 (Ct App 1996); People v Ruiz 52 Cal Reptr 2d 561 (Ct App 1996); People v Superior Court (Romero) 37 Cal Reptr 2d 364 (Ct App 1995). This is in spite of the powerful precedent set by the Supreme Court of that State in In re Lynch (n. 97). Thompson v Oklahoma 487 US 815 (1988); but cf. Stanford v Kentucky 492 US 361 (1989). 71

Chapter 2 The position for other severe sentences has been different. Since the decline of the rehabilitative ideal, also in the sphere of juvenile justice, most juveniles who are subject to severe sentences are tried in adult courts and sentenced according to the law applicable to adults. Such referrals or 'waivers' are done on the basis that the crime is serious and that the juvenile, who sometimes, but not always, has to have reached a minimum age, has the capacity to be tried in an adult court. In the early 1990s 40 States made it easier for such waivers to be granted by a judge, by a prosecutor or by a provision specifying that certain serious offences committed by a juvenile above a certain age may automatically be tried in adult courts.215 The effect of such waivers is drastic. In an adult court juveniles are treated as adults. They not only can be sentenced to death if their crimes were committed after the age of 16, but subject to life sentences without the possibility of parole (LWOP). Logan argues that this is increasingly the case. He elaborates: "Currently, the statutory law of only a handful of States expressly prohibits the imposition of LWOP on those under the age of sixteen at the time of their offense, while the overwhelming majority of American jurisdictions appear to permit such sentences or even make LWOP mandatory upon conviction in an adult court. As a result, in the State of Washington, for instance, offenders as young as eight years of age can be sentenced to LWOP, while in Vermont ten-year-olds can draw such terms."216 Challenges to such laws at the Federal level have been unsuccessful. In Harris v Wright217 the Ninth Circuit of the Federal Court of Appeals upheld the constitutionality of a Washington statute in terms of which a fifteen-year-old had been sentenced to life without parole for murder.218 It is instructive to see the role the judgment in Harmelin v Michigan played in this decision. First the Court in Harris held that only in death penalty cases was there what it called "an inference of gross disproportionality".219 The heavy burden that Harris would have to discharge in any other case was that the American "culture and law emphatically and well nigh universally rejected" the sentence of life without parole for murder.220 This he clearly could not do. Moreover, the Court emphasised: "Youth has no obvious bearing on this problem: If we can discern no clear line for adults, neither can we for youths. Accordingly, while capital punishment is unique and must be treated specially, mandatory life imprisonment without parole is, for 215 216 217 218

219 220

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Logan (n. 204)690-691. Ibid., 690 (footnotes omitted). 93 F 3d 581 (9th Cir 1996). See in general the Note "Eighth Amendment - Juvenile Sentencing - Ninth Circuit Upholds Life Sentence Without Possibility of Parole of Fifteen-Year-Old Murderer - Harris v. Wright, 93 F. 3d 581 (9th Circ 1996)", (1997) 110 Harvard Law Review, 1185. (n. 217) at 585. At 583.

The United States of America young and old alike, only an outlying point on the continuum of prison sentences. Like any other prison sentence, it raises no inference of disproportionality when imposed on a murderer." 221 The reason why youth was found to have no bearing is also related directly to the Harmelin judgment, for the part of that judgment on which the majority agreed was that for non-death penalty cases a proportionality test did not require individualisation.222 This meant that only the offence could be considered. The fact that culpability of the individual offender might be reduced because, in this case, of his youth could, therefore, not be taken in account. This line of reasoning has not been challenged successfully at the Federal level. Some State courts have found that in proportionality analyses juveniles facing life sentences should be treated differently because of their reduced culpability and because life without parole sentences in particular might impact with disproportionate harshness on them. Thus the Supreme Court of Nevada, in striking down a life without parole sentence imposed on a 13-year old, have characterised it as "a denial of hope; it means that good behavior and character improvement are immaterial; it means that whatever the future might hold in store for the mind and spirit of [the offender] he will remain in prison for the rest of his days."223 However, a comprehensive survey has concluded that most American courts refuse to take account of youth when conducting a constitutional proportionality analysis.224 6. INDIRECT LIFE SENTENCES FOR THE DANGEROUS SANE? Much of the recent rhetoric propagating life sentences, in particular those without the prospect of parole, both as sentences imposed for a specific crime and for a third strike, had to do with the incapacitation of the dangerous. It was, however, still cast within a framework that retained a link with a sentence following a criminal conviction for an offence that in the view of the proponents of the sentence was serious. Even though critics might have suggested unsuccessfully that many of these sentences were grossly disproportionate, some element of desert remained for those who had deliberately infringed the law and had been punished severely for what they had done. It remained trite law that dangerous persons who had not been convicted of a crime could not be punished;225 at worst they could be civilly detained for an indefinite period, but then only if they were suffering from a mental illness.226 Also, once an offender had served a 221

222 223

224 225 226

At 585. Harmelin v Michigan (n. 127) at 585. Naovarath v State 779 P 2d 944 944 (Nev 1989): See also Hampton v Kentucky 666 S W 2d 737 741 (Ky 1984): "... life without parole for a juvenile, like death, is a sentence different in quality and character from a sentence to a term of years subject to parole" (at 741). Logan (n. 204) 704. Cf. the well-known decision of the US Supreme Court that mere status cannot be punished: Robinson v California 370 US 660 (1962). Foucha v Louisiana 504 US 71 (1992).

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Chapter 2 determinate sentence he could not be recalled to prison. Even a period of parole to which a prisoner was subject, parole to which most life prisoners remain subject for the rest of their lives, gave them a liberty interest, which could only be denied after a measure of due process. In the late 1990s even this tenuous link with desert was threatened by the acceptance of a significant blurring of the distinction between civil and criminal law in order to deal with what was perceived to be a new danger. At stake were laws that provided for the additional detention of dangerous sex offenders. The initial challenge, which reached the US Supreme Court in the case of Kansas v Hendricks 227 was aimed at the Sexually Violent Predator Act in Kansas that provided for the prosecuting authorities to initiate the indefinite further "civil" detention of a convicted sex offender who had served his term but who was still held to pose a danger. Hendricks' challenge to the constitutionality of his further detention had been upheld by the Kansas Supreme Court on the basis that his rights to due process had been denied in his further detention because it had not been proven that he was mentally ill. Underlying this analysis was the libertarian notion, well expressed by Stephen Schulhofer, that "... involuntary commitment based on predictions about future conduct can be justified only as a gap-filler, to solve problems that the criminal process cannot address. In the absence of mental illness sufficiently serious to preclude criminal responsibility, predictive confinement violates the first principle of limited government - to treat every mentally competent adult as a free and autonomous person responsible for his chosen actions - and only for his chosen actions."228 In Kansas v Hendricks the US Supreme Court unanimously rejected the requirement of mental illness before indefinite 'civil' preventive detention could be imposed. It was happy to accept a wider concept of "mental abnormality", which in fact meant nothing more than that the offender had a propensity to commit the same offence after release: that is, was dangerous. The Court did divide on one issue: whether the additional period of detention was civil confinement or an additional penalty. The majority of five justices held the former and saw no difficulties in it, although it would place an extra burden on the offender and offered him no real treatment. The dissent found that the way that the additional detention had been structured meant that it was a further penalty and therefore amounted to ex post facto punishment. However, the dissent did not discourage further action by the States. On the contrary, Justice Breyer on their behalf emphasised: "To find a violation of the [Ex Post Facto] Clause here, is not however to hold that the Clause prevents Kansas, or other States, from enacting dangerous sexual offender statutes. A statute that operates prospectively, for example, does not offend the Ex Post Facto Clause. Neither does it offend the Ex Post Facto Clause for a State to sentence offenders to the fully authorised sentence, to seek consecutive, 227 228

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521 US 346 (1997). Schulhofer (n. 61) 96.

The United States of America rather than concurrent, sentences or to invoke recidivism statutes to lengthen imprisonment. Moreover, a statute that operates retroactively, like Kansas' statute, nonetheless does not offend the Clause if the confinement that it imposes is not a punishment - if, that is to say the legislature does not simply add a later criminal punishment to an earlier one.229 Only a single judge, Justice Kennedy, who wrote a separate opinion while also concurring in the majority judgment, worried that, notwithstanding the majority findings of the civil attributes of the Kansas law, the practical effect of it might be to impose confinement for life, as experts might be reluctant to authorise Hendricks' release by predicting that he was not dangerous any more. Justice Kennedy noted that the public response might be "A life term is exactly what the sentence should have been anyway", but that this missed the point of the limits of civil confinement.230 He emphasised that "while incapacitation is a common goal to both the criminal and civil systems of confinement, retribution and general deterrence are reserved for the criminal system alone".231 Justice Kennedy continued that the Court would reconsider its precedents "if ... civil confinement were to become a mechanism for retribution or general deterrence, or if it were shown that mental abnormality is too imprecise a category to offer a solid basis for concluding that civil detention is justified".232 Notwithstanding this gentle admonition of caution, the Supreme Court judgment has been read as authorising the enactment of 'sexual predator' laws. A number of other States have rapidly followed the example of Kansas.233 A new 'civil' procedure allowing effective life imprisonment has been created, but in the hands of prosecuting authorities rather than the mental health professionals who dominated the implementation of the 'sexual psychopath' laws of the 1930s.234 The new procedure does not have the full protection of either the criminal justice system or civil system, where previously a clear finding of mental illness was required.235 This is ironic, for as one critic has noted: "If life imprisonment for a crime actually committed requires criminal procedure, life imprisonment for a crime anticipated but not committed surely does as well."236

229 230 231 232 233

234 235 236

(n. 227) at 536 (emphasis in the original; internal references omitted). At 522. Ibid. Ibid. Susan R. Klein, "Redrawing the Criminal-Civil Boundary", (1999) 2 Buffalo Criminal Law Review, 679; Tanya M. Montano, "Comment, Will California's Sexually Violent Predators Act Survive Constitutional Attacks?", (1998) 39 Santa Clara Law Review, 334. Schulhofer (n. 61)71. Adam J. Falk, "Sex Offenders, Mental Illness and Criminal Responsibility: The Constitutional Boundaries of Civil Commitment", (1999) 25 American Journal of Law and Medicine, 117. Klein (n. 233) 706-7. 75

Chapter 2 7. CONCLUSION The judgment in Kansas v Hendricks illustrates how the legal limits on life imprisonment have changed in the United States of America. The shift from 'mental illness' to 'mental abnormality,' at the core of the Supreme Court's judgment, is a move away from the expertise of the relatively independent quasi-medical expert to the expert knowledge of criminal justice professionals, such as prosecutors, who now take the initiative in keeping 'sexual predators' in indefinite detention. There is an irony in this shift. The uncertainty about medical expertise, directly reflected again in the Supreme Court's judgment, has its roots in scepticism about the role of experts generally in rehabilitating offenders. This scepticism was supposed to lead to the recognition of additional due process protections for offenders and seemed in the early 1970s to provide the basis for restricting indeterminate sentences and limiting life imprisonment to the most serious offences. Instead, the additional leeway has been given to the criminal justice professionals who are most likely to be open to blandishments of popular punitiveness. As Jonathan Simon has pointed out, the term 'predator' is not a term of art of the criminal lawyer or of the psychiatrist.237 He argues that it is a "potent symbol of the state's willingness to use power"238 Officials who use it to 'manage' an identified dangerous group by detaining them indefinitely can rely on a great deal of public support and have powers that the Supreme Court has proved reluctant to curtail. In other words, the Supreme Court in Kansas v Hendricks has provided a licence for the 'new penology' to operate unrestrictedly. Kansas v Hendricks is only the latest example of a tendency by the Supreme Court to withdraw from the constitutional control of indeterminate penal detention that sometimes, but not always, is called life imprisonment. This chapter has described the ideas and social forces that underpin them, which provide the context for that tendency. These range from the penological difficulty of having to contend with the death penalty, which is an anachronism in all other western countries, to the impact of 'popular punitiveness' shorthand for the complex of ideas that has led to the endorsement of punishments that blend contempt for claims of experts that they can rehabilitate offenders with a cocktail of retributive, deterrent and incapacitatory responses to serious crime. It would be possible to see both the high numbers of prisoners serving life sentences in the United States of America and the 'hands off, if not uncaring, legal response to the dilemmas of life imprisonment that has emerged in recent decades simply as products of American social and penal evolution. While it is useful to know what these constraints are and to understand that they may limit the scope for manoeuvre of those who may have wanted this to develop differently, it is important to realise that the outcomes are not inevitable or pre-ordained. There are many indications, not least in the dissenting judgments of leading American judges and in the reflections of American scholars, that 237 238

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Jonathan Simon (n. 167) 452. Ibid., 459.

The United States of America the ideals of American constitutional law and justice could have been interpreted in other ways, which might have had a profound impact on the imposition of sentences of life imprisonment and their implementation. The concluding chapter returns to these indications when it reflects on how life imprisonment could be approached differently.

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CHAPTER 3

ENGLAND AND WALES

1. THE CURRENT POSITION There are effectively three grounds on which life sentences can be imposed in modern England and Wales.1 (1) The sentence of life imprisonment is mandatory for murder.2 (2) A court has a discretion to impose life imprisonment for a range of other offences,3 but (3) a court must impose life imprisonment for a second serious sexual or violent offence unless there are exceptional circumstances relating either to the offence or the offender that justify it not being imposed.4 Essentially the same sentences may be imposed on young offenders aged between 18 and 21 years, although in their case the sentence is one of "custody for life".5 If convicted of murder,6 juveniles between the ages of ten and 18 years must be sentenced to "detention during Her Majesty's pleasure", an effective life sentence. They may also be sentenced to custody for life for offences where the court would have had the discretion to impose a life sentence on adults convicted of the same offence.7

References to England below are also taken to include Wales, for, notwithstanding a degree of political devolution in the 1990s, the criminal justice system in Wales is still operated jointly with that of England. Scotland is not included as it has a separate legal system (See Michael Adler, Prisoners' Rights and Indeterminate Sentences, unpublished paper, 11th International Congress on Criminology, Budapest, Hungary, 22-27 August 1993). Neither is Northern Ireland included, as its political situation is so extraordinary that the use of imprisonment is substantially different there. Section 1(1) of the Murder (Abolition of the Death Penalty) Act 1965. The offences for which such sentences have been imposed since 1989 are listed in Table 4. This list does not include all crimes for which there is provision for a life sentence. Section 109 of the Powers of Criminal Courts (Sentencing) Act 2000. Sections 93 and 94 of the Powers of Criminal Courts (Sentencing) Act 2000 (formerly, s. 8(2) of the Criminal Justice Act 1982.) The sentence of custody for life was abolished by s. 61 of the Criminal Justice and Courts Services Act 2000. By October 2001, however, this provision had not been brought into effect. When it is activated, the effect will be that young offenders between the ages of 18 and 21 years will be subject to mandatory and discretionary life sentences in the same way as adults are. Section 90 of the Powers of Criminal Courts (Sentencing) Act. See Blackstone's Criminal Practice 20001, Peter Murphy (ed.), London: Blackstone, 2001, 1823 para E3.13. This result is achieved indirectly by s. 91 of the Powers of Criminal Courts (Sentencing) Act. It provides that if a sentence of more than 14 years could be imposed on an adult convicted of a specific offence a court may impose a sentence of imprisonment on a juvenile for whom none of the other methods by which the case could be dealt with is suitable. Imprisonment in this context includes detention for life.

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England and Wales Both the overall number of persons sentenced to life imprisonment each year and the number of persons already in the system serving life sentences have continued to rise during the last decade (see Table 4 and Table 5 respectively). The increase in the number of persons serving life sentences is due not only to the number of such sentences being imposed but also to the increasing length of the sentences actually being served. In 1990 the average sentence served before release was 13 years while by 2000 it was 13.3 years (see Table 6). In 2000, 4 538 prisoners were serving life sentences as compared to 2 677 in 1989. They made up 8.6 percent of the sentenced prison population8 compared to 7.12 percent 11 years earlier.9 Do these figures include all persons for whom conviction after detention is potentially life long? The figures do not include juveniles "detained during Her Majesty's pleasure". This is significant, for after such offenders reach the age of 18 years they may be detained further in young offenders' institutions within the prison service and eventually within prison. Their numbers are, however, relatively small. In 2000 there were 70 juveniles "detained during Her Majesty's pleasure". A further 31 juveniles were detained after discretionary life sentences had been imposed on them.10 There is no formal limit on the length of fixed-term sentences, so in theory the danger exists that prisoners could be sentenced to terms that are in fact disguised sentences of life imprisonment. However, there is a convention that sentences should normally not be longer than about 22 years.'' Convicted offenders who suffer from a mental disorder but have not been declared insane may be detained indefinitely within the mental health system by being made subject to a hospital order coupled with a restriction order in terms of the Mental Health Act 1983. The restriction order is made when a person is found to be suffering from a mental disorder and it is necessary to protect the public against serious harm that may be caused by that person.12 It can only be made coupled with a hospital order.13 Although about 200 such restriction orders are made each year,14 the limitations on when they may be imposed mean that some mentally disordered offenders are held in the prison system, See Home Office, Prison Statistics England and Wales 2000 (Cm 5250), London: HMSO, August 2001, at 1 for number of sentenced prison population and Ibid, at 98 for those serving life sentences. (In the report the figures have been rounded off). In 1989 2 700 persons were serving a life sentence including and "custody for life" and "detention during Her Majesty's pleasure". (Home Office, Prison Statistics England and Wales 1989 (Cm 1221), London: HMSO, 1990,121). In 1989 the sentenced population was 37 900 (Ibid., 9). (In the report the figures have been rounded off). See Home Office, Prison Statistics England and Wales 2000 (Cm 5250), London: HMSO, August 2001, chapters, Table 3.1. The rare exceptions relate to the functional equivalents of mass murder for which an offender sentenced to life imprisonment would actually have served a period of more than 20 years: see Andrew Ashworth, Sentencing and Criminal Justice, 3rd ed., London: Butterworths, 2000, 103-104. Section 41 of the Mental Health Act 1983. Section 37 of the Mental Health Act 1983. See Robert Street, The Restricted Hospital Order: from court to community (Home Office Research Study 186), London: Home Office, 1998, 9, who found that 94 percent of the orders he studied were unrestricted. 79

00 o

Table 4: England and Wales: Persons Sentenced to Life Imprisonment and the Offences 1960 to 1999 Offence Description Violence Against The Person Murder Attempted murder Threat or conspiracy to murder Manslaughter under s. 2 Homicide Act 1957 Manslaughter due to diminished responsibility Manslaughter Other manslaughter Felonious woundings Wounding or other act endangering life Other wounding

Year of Sentencing 1960 1965 1970

1975

1980

1985

1990

1995

1996

1997

1998

1999

33 11 1 -

40 12 -

87 3 11 1 1 -

101 7 14 2 4 -

149 2 14 1 3 -

155 4 3 3 7 -

170 9 3 9 3 -

204 6 6 6 13 -

230 8 1 1 13 13 1

249 8 5 3 13 -

244 7 1 5 30 6

228 13 4 12 63 8

a

1 1

3 6

3 5

2 4

10

2 11

2 12

1 14

-

-

1

-

-

-

-

-

-

5 29 1 -

3 45 2 -

7 57 4 2

Burglary Aggravated burglary in a dwelling

-

-

-

-

-

2

-

1

-

-

1

-

Robbery Robbery or assult with intent to rob

-

-

2

1

-

1

2

2

8

4

16

36

Criminal damage Arson

-

1

3

7

8

4

5

6

12

13

12

9

Sexual Offences Buggery Rape of a Female Rape of a Male Unlawful sexual intercourse with girl under 1 3

Criminal damage endagering life

-

-

-

1

-

-

-

-

-

-

-

-

Drug Offences Production, supply and possession with intent to supply a controlled drug - Class A Production - Class unspecified

-

-

-

-

-

-

-

-

-

1 -

-

1 1

Other Indictable Offences Kidnapping Rioting

-

-

-

-

-

1

-

3 -

7 ~

6 •

7 •

8 •

45

55

118

145

183

190

214

262

311

340

382

454

Persons Sentenced under s. 53(1 )h of the Children and Young Persons Act 1933 1960 1965 1970 1975 1980 1 11 3 20 Murder

1985 5

1990 10

1995 10

1996 26

1997 26

1998 10

1999 24

Total

Source: CCJU(RDS), Home Office, IOS643-00. a b

.. Data not available as the Act did not come out until 1995. Under s. 53( 1) of the Children and Young Persons Act 1933 anyone found guilty of murder committed when under the age of 18 must be sentenced to Detention during Her Majesty's Pleasure. As with persons sentenced to Life Imprisonment, the date of release depends on the individual circumstances of the case.

Table 5: England and Wales: Population of Life Sentence Prisoners as at 30 June for the Years 1989 to 2000.

Males Young Offenders Adults

1989 2592 103 2489

1990 2704 121 2583

1991 2800 100 2700

1992 2904 87 2817

1993 2990 77 2913

1994 3081 83 2998

1995 3 176 83 3093

1996 3365 75 3290

1997 3584 100 3484

1998 3797 121 3676

1999 4056 131 3925

2000 4385 144 4241

Females Young Offenders Adults

85 5 80

91 4 87

96 5 91

96 4 92

105 4 101

111 5 106

113 5 108

124 5 119

137 9 128

137 5 132

150 8 142

153 7 146

Total Population

2677

2795

1 896

3000

3095

3 192

3289

3489

3934

4206

4538

3721

Source: Home Office, Prison Statistics England and Wales 1999 (Cm 4805), London: HMSO, July 2000, 101: Home Office, Prison Statistics England and Wales 2000 (Cm 5250), London: HMSO, August 2001, 103.

England and Wales Table 6: England and Wales: Life Sentenced Prisoners First Released from Prison on Life Licence and Average Time Served for the Years 1990 to 2000. Year of Release

1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000

Number of Murderers 57 58 67 66 77 60 71 88 90 113 113

Average Time Served in Years

12.2 11.9 12.4 14.4 15.4 14.0 13.1 14.4 13.3 13.1 13.3

Others: Number

17 14 23 60 29 32 14 10 8 9 14

Average Time Served in Years

15.5 12.7 15.3 14.6 13.6 13.5 17.3 13.3 13.6 16.2 13.5

Total Number of Life Sentenced Prisoners 74 72 90 126 106 92 85 98 98 122 127

Average Time Served in Years

13.0 12.1 13.2 14.5 14.9 13.8 13.8 14.3 13.3 14.8 13.3

Source: Home Office, Prison Statistics England and Wales 2000 (Cm 5250), London: HMSO, August 2001, 106.

often on discretionary life sentences, either because they are deemed not to be treatable or simply because there is not space for them in a mental hospital.15 A characteristic feature of the current English system is that for prisoners sentenced to life imprisonment, except for adults convicted of murder, a so-called tariff sentence is set in public by the court when it passes sentence. This is the period after which the offender would have been considered for release on parole, if a punitive, fixed-term sentence had been imposed rather than life imprisonment. After this tariff period has been served, the release of the offender is determined solely on the basis of whether the offender still presents a risk to society. In the case of mandatory sentences for murder a tariff is set after a more informal consultative process by the Secretary of State for the Home Office (the senior Government minister with responsibility for the criminal justice system, usually referred to as the Home Secretary). After that period release is still not guaranteed, for even if the offender is found by the Parole Board no longer to be dangerous, the Home Secretary makes the final decision on release. The elaboration of release procedures and the justifications for the different procedures for ending the imprisonment of adults convicted of murder, who, as Table 4 shows, still make up the majority of all persons sentenced to life imprisonment, have shaped much of the debate about life sentences in modern English law. Sentenced prisoners, including those serving life sentences, may also be transferred to a mental hospital: ss. 47 and 49 of the Mental Health Act 1983.

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Chapter 3 In practice, most lifers serving mandatory sentences for murder are released. However, the House of Lords, the court of final instance in England, has held that a whole-life tariff would not be illegal.16 In early 2000 there were 23 prisoners subject to such a tariff.17 In some ways their sentences have become the English equivalents of the American sentence of life without parole, but even for these prisoners there are administrative mechanisms other than royal pardon by which their release can be effected. 2. HISTORICAL BACKGROUND a) Early alternatives to the death penalty To a far greater extent than in the United States of America, the evolution of life imprisonment in England, until the second half of the twentieth century, was dominated by debates about the appropriate penalty for a particular offence: murder. The immediate reason for this was that the use of the death penalty had at an early stage effectively been restricted to murder. Life imprisonment was seldom used as a preventive sentence for other offences. The evolutionary process that had led to this situation shows not only important similarities to, but also significant differences from, that in the United States. In England too, from the late eighteenth century onwards there was a movement to reduce the use of the death penalty, accompanied by a small but growing chorus of voices arguing for its complete abolition.18 Both reductionists and abolitionists concentrated on doing away with the death penalty rather than on alternatives. In England the question of alternatives did not initially arise so starkly, as transportation to the colonies, for life if necessary, provided an additional alternative for the first decades of the nineteenth century when a reduction in the use of the death penalty was being promoted. Inasmuch as they considered alternatives to death, early abolitionists such as Jeremy Bentham favoured very harsh measures, much like Beccaria and his American supporters. Bentham conceded that death would be viewed by most people as the greatest deterrent. However, hardened criminals were different. In Bentham's view: "the contemplation of perpetual imprisonment, accompanied with hard labour and occasional solitary confinement, would produce a deeper impression on the minds of persons in whom it is desirable that the impression should be produced, than death itself."19 The reduction of the use of the death penalty culminated in the Criminal Law Consolidation Act 1861, which restricted its use to mandatory death sentences for murder R v Secretary of State for the Home Department, ex pane Hindley [2000] 2 All ER 385 (HL). At 388a. See in general, Leon Radzinowicz, A History of English Criminal Law and its Administration from 1750, Vol. 1, London: Stevens and Sons, 1948. Jeremy Bentham, "Principles of Penal Law" in Jeremy Bentham, Works (Bowring ed.) Vol. 1, 1843 (reprinted New York: Russell and Russell, 1962), 430. 84

England and Wales and treason and specialised types of piracy and arson.20 However, at this point resistance to further abolition stiffened, with the result that the law on these penalties was to remain virtually unchanged for almost a century. Two aspects of this resistance are worth emphasising, as they were to find echoes in later debates when the sentence of life imprisonment became the focus of the debate rather than something to be mentioned in passing. First, as the possibilities for deportation decreased, concern about enforceable alternatives grew. This is reflected in the views of the senior judiciary at mid-century. Only a minority favoured abolition and then only if the death penalty could be replaced by mandatory full-life sentences. To this the judicial supporters of the death penalty responded that such rigorous enforcement was a practical impossibility and that the deterrent effect of the resultant temporary imprisonment would be very limited.21 Secondly, even liberals had fundamental doubts about life imprisonment as an alternative penalty for the most serious offences. These were most famously expressed by John Stuart Mill in a parliamentary speech in 1868.22 Mill argued forcefully in favour of the retention of the death penalty on the basis that the only realistic alternative, full-life imprisonment (with hard labour), was so severe as to present a greater affront to human dignity than capital punishment. According to Radzinowicz, Mill's speech delivered a blow from which the movement to abolish the death penalty did not recover for many years.23 It also contributed to a perception of what life imprisonment entailed that would find echoes when alternatives to the death penalty became a serious issue again in the 1940s and 1950s. b) Indeterminate preventive sentences Before considering these more modern developments in respect of penalties for the most serious offences it is worth noting that in England, as in the United States, there was also a nineteenth century movement to have indeterminate sentences introduced as a means of dealing with habitual offenders. Again as in the USA, this movement was based on the notion that prison could reform most offenders and that only a small core of offenders would have to be detained indefinitely. In the thinking of one of its mid-nineteenth century supporters, Mathew Davenport Hill, this was developed into explicit support of life sentences for purposes of incapacitation.24 These could be extended to persons with

Leon Radzinowicz, A History of English Criminal Law and its Administration from 1750, Vol. 4, London: Stevens and Sons, 1968, 339-40. Ibid., 333. Parliamentary Debates, House of Commons, Vol. 191, cols. 1047-1055, 21 April 1868. Leon Radzinowicz and Roger Hood, A History of English Criminal Law and its Administration from 1750, Vol. 5, London: Stevens and Sons, 1986, 685. The enormous impact of Mill's speech on thinking about ultimate penalties generally is also recognised by Leon Shaskolsky Sheleff, Ultimate Penalties, Capital Punishment, Life Imprisonment, Physical Torture, Columbus: Ohio State University Press, 1987, 59 — 61. Radzinowicz and Hood (n. 23 ) 213-33. The nineteenth century American penal reformers Wines and Dwight quote Hill as having said in Birmingham in 1855: 85

Chapter 3 previous convictions who could not prove that they had come by their income legally. However, these ideas met with strong opposition, from The Times newspaper amongst others, which proclaimed that "unfledged suspicions" could not justify the incarceration of an Englishman, and were not introduced into law.25 Publicists continued, nevertheless, to make propaganda for the "perpetual sequestration" of hardened criminals.26 Among these were proposals, first put forward in 1868, for a dual-track system that would hold habitual offenders under harsh, deliberately penal conditions for the first period of their detention but then would keep them in protective detention for the remainder of their lives under much more pleasant conditions.27 This proposal too did not come into effect for many years. The philosophy behind the idea of treating 'incorrigible' offenders differently did eventually find expression in law in the Prevention of Crime Act 1908, which provided for the additional preventive detention of habitual criminals beyond the periods of penal servitude imposed on them for their initial offences. This innovation marked an important shift towards a penal system that would rehabilitate the improveable majority and control the incorrigible indefinitely. There was, however, one important feature. The additional preventive period was limited to a maximum of ten years, effectively a pragmatic compromise with those who still favoured some proportion between crime and punishment.28 Notwithstanding much further rhetoric about the improveability of the majority of the offenders and the need to incapacitate a hard core by indefinite incarceration, preventive detention for habitual offenders was not a life sentence. This remained the position for the next 40 years. When the 1908 Act was finally repealed by the Criminal Justice Act 1948, the dual-track system was abandoned, but it was not replaced by indefinite sentences.29 The preventive detention sentences for habitual offenders for which the 1948 Act provided, were for a maximum term of 14 years from imposition. Nor were the maximum penalties of life imprisonment used to deal with habitual offenders. Between 1940 and 1949 only one offender was sentenced to life imprisonment, for an offence against the Defence regulations. Indeed, only three

"But as no training, however enlightened and vigilant, will produce its intended effects on every individual subjected to its discipline, what are we to do with the incurable? Gentlemen, we must face this question; we must not flinch from answering, that we propose to retain them in prison until they are released by death. You keep the maniac in a prison (which you call an asylum) under similar conditions; you guard against his escape until he is taken from you, either because he is restored to sanity, or has departed to another world. If, gentlemen, innocent misfortune may and must be so treated, why not thus deal with incorrigible depravity?" (Enoch C. Wines and Theodore W. Dwight, Report on the Prisons and Reformatories of the United States and Canada made to the Legislature of New York, Albany: Van Benthuysen and Sons, 1867, 275-276). Radzinowicz and Hood (n. 23) 236. See, for example, Harriet Martineau quoted by Radzinowicz and Hood (n. 23) 239. Radzinowicz and Hood (n. 23) 240. For a superb analysis of these subtle processes in England in the first decade of the twentieth century, see David Garland, Punishment and Welfare, Aldershot: Gower, 1987. Norval Morris, The Habitual Criminal, London: Longmans, Green and co., 1950. 86

England and Wales others in that decade received sentences of longer than ten years and two of the three were for attempted murder.30 This relative mildness in penalties for crimes other than murder was one of the key differences from the United States, when penal reform after World War II turned again to the question of the possible substitutes for the death penalty as the appropriate sentence for murder. It would have a profound impact on the development of life imprisonment as well. c) Life imprisonment and the abolition of the death penalty The fact that life imprisonment was rarely being imposed by the courts in the 1940s did not mean that life sentences were not being served in the prisons. The death penalty was mandatory for murder, but life sentences were the automatic alternative for those offenders who had their sentences commuted. These made up the overwhelming majority of all life sentences by the time the debate about the future of the death penalty began to reach a climax: about 45 percent of the 1 210 persons convicted of murder in the first half of the twentieth century had their sentences commuted to life imprisonment.31 The movement for the abolition of the death penalty played itself out in Parliament and not, as in the United States of America, in the courts.32 It reached an important milestone in 1948 when the House of Commons, in a free vote, passed an amendment to the Criminal Justice Bill abolishing the mandatory death penalty for murder and replacing it by a mandatory sentence of life imprisonment. The House of Lords rejected this amendment.33 As the House of Lords could effectively delay legislation, the Labour Government then introduced a compromise in the House of Commons, which attempted to distinguish aggravated forms of murder that would continue to be punished by death while the remainder would be met with life imprisonment. This somewhat hasty amendment was carried in the House of Commons, voting largely on party lines, but again defeated in the House of Lords. In order to save the Bill as a whole, all attempts to change the penalty for murder were eventually excluded by the Government. Nevertheless, it was clear that there was substantial support in Parliament for a change in the law governing the penalty for murder and that this would entail an increased imposition of life imprisonment. The Government's response was to appoint a Royal Commission on Capital Punishment. The terms of reference of the Commission were Royal Commission on Capital Punishment, 1949-1953 Report (Cmd. 8932), London: HMSO, 1953, 228 para 649. To the number of lifers must be added the few children under the age of 18 years, detained during His Majesty's Pleasure under s. 53(1) of the Children and Young Persons Act 1933. For a full account of the politics of the period on the death penalty, see James B. Christoph, Capital Punishment and British Politics: the Movement to Abolish the Death Penalty 1945-57, Chicago: University of Chicago Press, 1962. There was considerable irony in this, as the elected House of Commons was appealing to 'higher' principles such as the sanctity of human life but going in the face of popular opinion, which polls showed consistently to support the retention of capital punishment. Conversely, the unelected upper house, which included the senior judges, argued that their opposition was underpinned, and therefore made constitutionally acceptable, by wider public sentiment.

87

Chapter 3 however, very narrow, as the abolition of capital punishment was beyond its remit. It did however include questions about alternatives, which would have a direct bearing on life imprisonment. The Commission was to consider "whether the liability ... to suffer capital punishment for murder should be limited or modified, and if so, to what extent and by what means, for how long and under what conditions persons who would otherwise have been liable to suffer capital punishment should be detained".34 The Commission stuck scrupulously to its narrow brief and did not consider the full scope of the debate about capital punishment.35 Its conclusion was that the operation of the existing system was broadly satisfactory for those who supported capital punishment, for from this point of departure persons were not being executed "who would have been more suitably punished by imprisonment".36 However, the Commission was highly critical of the procedure by which all those convicted of murder were sentenced to death, since a significant proportion were not executed because they were pardoned almost as a matter of routine. In its view the Royal Prerogative of Mercy should be used only as an exceptional measure. A different system should be devised to achieve the same result. However, the Commission found it difficult to suggest the changes that should be introduced. It rejected any attempt to divide murder into two degrees with only the most serious carrying the death penalty or a narrower statutory definition of the law of murder. It also rejected the idea of allowing a finding to be made of diminished responsibility, which would allow a conviction of manslaughter instead of murder. It did, however, suggest alterations to the substantive law on provocation, which would lead to it being recognised more readily as a defence against a charge of murder. This in turn would have resulted in more convictions for manslaughter, which carried a discretionary life sentence. A proposed alteration to the technical requirement of malice aforethought in the definition of murder could have had the same effect, but that too was rejected. The Commission also rejected giving judges the discretion to impose death sentences or an alternative of life imprisonment. In this regard it noted that the judiciary itself was reluctant to have this "intolerable responsibility".37 The solution that it did put forward was to give a jury, which had convicted an offender of murder, the additional power to decide whether a lesser punishment than death should be imposed. It is noteworthy that the Commission's recommendation was that the lesser punishment should always be life imprisonment: "This would preserve a distinction between the penalties for murder and for manslaughter." 38 The inquiry into alternatives to capital punishment produced a great deal of interesting information about the existing system of dealing with lifers, in practice, persons 34 35 36 37 38

88

Royal Commission on Capital Punishment (n. 30) iii. Ibid., 212 para 605; also Leon Radzinowicz, Adventures in Criminology, London: Routledge, 1999, 259. Royal Commission on Capital Punishment (n. 30) 213, para 608. Ibid., 191 para 541 Ibid., 195 para 553.

England and Wales convicted of murder who had had their sentences commuted. It is noteworthy that, although some lifers died in prison, the Commission could find no example of a case where it had been decided that someone "shall be kept in penal servitude until he dies".39 The periods of detention were determined by the Secretary of State for the Home Office. The policy adopted by the Home Secretary towards the life sentence was explained to the Commission in the following terms: "The punishment must be sufficient to deter others and to be accepted by public opinion as an adequate vindication of the law: it ought not to suggest that the crime of murder is regarded lightly by the State or can be put on the same level with other crimes. It is therefore desirable to grade the terms as far as possible according to the degree of culpability in each case. Account must also be taken of the length of sentences imposed by the Courts for other offences."40 The Commission also studied the length of the periods of detention before release of prisoners serving life sentences. In 1866, shortly after the entrenchment of the mandatory death penalty as the sentence for murder, a minimum period of 20 years had been set. However, by the end of the nineteenth century this had become the effective maximum. Shortly afterwards this began to be treated as a sentence of 20 years, which meant that lifers were routinely released after having served 15 years. This is what a sentence of 20 years reduced by the standard remission would have meant. Further reductions followed with the result that by 1939 most life sentence prisoners were released after having served between ten and 13 years. This downward trend continued in the 1940s, driven during the war years by an increased need for labour. In this decade, the last considered by the Commission, the majority of prisoners were released after having served between six and ten years.41 The Commission did not find it problematic that the Home Secretary determined the actual periods of detention - this in spite of the fact that grading prison terms in relation to culpability may have been seen as a classical sentencing function. It is noteworthy that the Home Secretary did not attempt to justify his powers by claiming to be taking into account factors needed to protect the public against these offenders until they did not present a further danger to the public. There may have been a pragmatic explanation for this. One way in which persons charged with murder could avoid the death penalty was by successfully raising the question of their sanity. As many as 44 percent of all murder cases brought to court from 1946 to 1948 ended in the accused being found guilty but insane or insane on arraignment.42 The result for this very large group, who were technically not serving life sentences, was that the authorities had a discretionary power to detain them indefinitely.

Ibid., 226 para 644. Ibid., 226 para 644. Ibid., 227 paras 645 -646. Nigel Walker, Crime and Punishment in Britain, Edinburgh: University of Edinburgh Press, 1965, 159. 89

Chapter 3 The Home Secretary's discretionary power43 to release murderers after they had served relatively short periods of life sentences, imposed as the result of commutation of the death penalty, seems to have been widely accepted. The Commission noted that it had "received no evidence that the public regards as inadequate the periods at present served by life sentence prisoners", adding that these terms were still "on the whole longer than those served for any other crimes".44 Part of the reason for the lack of public reaction to the length of life sentences served for murder in the 1940s and 1950s may of course have been because the most heinous murders were still being punished by the death penalty. Nevertheless, the release of lifers was presented as an uncontroversial and wellfunctioning administrative system and the Commission did not recommend any changes to it. In reality there was little information about the process in the public domain. This, coupled with the prevailing culture of trusting decisions of the elite and of experts generally, contributed to the acceptance of the system. The Royal Commission on Capital Punishment put forward its key recommendations with some diffidence and noted that several witnesses had objected to many of them. It concluded that they were the best that could be done and that the "real issue [was] now whether capital punishment should be retained or abolished".45 Relatively shortly after the report had appeared its chairman, Sir Ernest Gowers, published a short book in which he explained that his work on the Commission had persuaded him of the abolitionist cause.46 One of the reasons that he gave for this was the evidence before the Royal Commission on life imprisonment as an alternative to capital punishment. Gowers argued that it showed that the prison system had developed to such an extent that life sentences could be implemented in a humane way, which included the release of lifers after an appropriate period of time. This meant that the fear that life imprisonment would be more inhumane than death - a concern expressed not only in the nineteenth century but also by Alexander Paterson, the leading prison administrator of the 1930s47 - could be discounted. By the time the Commission reported, there had been a change of Government and when, after a delay, the report was debated in Parliament, none of its carefully argued proposals was adopted.48 However, in the mid-1950s the abolitionist campaign was revived outside of Parliament and the Conservative Government felt it necessary to attempt to head it off with its own compromise legislation. The Homicide Act 1957 was 43 44

45 46 47 48

90

The power had long been exercised but since 1948 it had been regulated by s. 57 of the Criminal Justice Act 1948. This trend continued through the following decade: Between 1950 and 1960 almost three-quarters of released lifers (all except four of whom were reprieved murderers) were released after eight, nine or ten years: Walker (n. 42) 151. Royal Commission on Capital Punishment (n. 30) 214 para 611. Sir Ernest Gowers, A Life for a Life? The Problem of Capital Punishment, London: Chatto and Windus, 1956. The Royal Commission on Capital Punishment (n. 30) made extensive reference to the evidence that Paterson had given to the Parliamentary Select Committee on Capital Punishment in 1930. Christoph (n. 32) 126-167.

England and Wales the outcome. It essentially created a two-tier approach to murder by specifying certain types of murder for which the death penalty should be imposed49 and stipulating that for all other types of murder the sentence had to be one of life imprisonment.50 In the history of life imprisonment this was a key development, for there was now for the first time a category of crime, non-capital murder, for which life imprisonment was a mandatory sentence. Other changes introduced by the 1957 Act also had an impact on the substantive law of murder and thus indirectly on the sentence of life imprisonment. The Act abolished the doctrine of constructive malice51 as a sufficient requirement of murder and broadened the definition of provocation52 in the context of homicide, both reforms that had been suggested by the Royal Commission on Capital Punishment as changes to limit the scope of the crime of murder. However, it went further and provided that a finding that someone charged with murder was suffering from diminished responsibility at the time of the killing would have the result that the defendant concerned could only be convicted of manslaughter.53 The Homicide Act was followed in 1959 by another piece of legislation that had an impact on the indeterminate detention of convicted offenders. The Mental Health Act 1959 provided for offenders after conviction to be made subject to a hospital order if they suffered from a mental disorder. A hospital order could, however, not be made if an accused was convicted of murder. For all other offences, if in addition, "having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large" a court should conclude that it was necessary "for the protection of the public", the hospital order could be combined with a restriction order.54 A restriction order could be for an indefinite period, and therefore akin to a life sentence, as the offender could only be released with the approval of the Home Secretary.55 In this way an alternative form of life-long incarceration was formalised. The compromise of the Homicide Act did not satisfy those opposed to capital punishment. Abolition of capital punishment for murder was effectively achieved in 1965 when Parliament finally adopted the Murder (Abolition of the Death Penalty) Act 1965.56 This Act removed the differentiation introduced in 1957 and established that life

Sections 5 and 6. Section 9. Section 1. Section 3. Section 2. Section 65 of the Mental Health Act 1959. Section 66 of the Mental Health Act 1959; Nigel Walker and Sarah McCabe, Crime and Insanity in England, Vol. 2, Edinburgh: University of Edinburgh Press, 1973, 58-112. Technically the Act was only to be in force for five years after which it had to be affirmed by Parliament. Parliament took this final step on 31 July 1971: Radzinowicz (n. 35) 273. Total abolition of capital punishment was only achieved in 1998 when s. 36 of the Crime and Disorder Act 1998 abolished capital punishment for treason, piracy and related offences. Interestingly the new penalty for these offences, including treason, was a discretionary and not a mandatory life sentence: Nicola Padfield, A Guide to the Crime and Disorder Act 1998, London: Butterworths, 1998, 41. 91

Chapter 3 imprisonment would be the mandatory punishment for all forms of murder.57 The substantive changes to the law relating to murder were left intact. Provocation and diminished responsibility remained grounds for reducing murder to manslaughter and thus making the life sentence discretionary rather than mandatory for many homicides. Most aspects of life imprisonment remained uncontroversial in the course of this debate. There was one important exception. In the House of Lords the Lord Chief Justice, Lord Parker, proposed that the sentence of life imprisonment for murder be made discretionary instead of mandatory.58 Less serious murders would be punished by fixed terms proportional to the culpability of the offender. The amendment was publicly supported by ten of the 11 judges who were members of the House of Lords, but only carried narrowly. The Government was unenthusiastic, as it feared that it would distract attention from the main objective, which was to abolish capital punishment.59 With the support of the Government Lord Parker then dropped his original amendment and proposed in its stead that the courts should be able to recommend a further period that would have to pass before a lifer could be released. This was adopted as part of the final Act,60 together with a further amendment, which required the Home Secretary to consult the Lord Chief Justice and the trial judge before releasing a lifer.61 Both the amendments that were adopted and those that were withdrawn are important, because they show for the first time an interest in involving the judiciary actively in the process of imposing and implementing the most statistically significant life sentence in English law, namely the life sentence for murder. Did this mean that there was at this stage a fundamental reflection on the meaning of life imprisonment as an ultimate penalty and the need to make its imposition and implementation subject to careful safeguards? Lord Parker's initial amendment might have given this impression. It seemed to be asking for the courts to be able decide on which murders were so serious as to justify life imprisonment, while others would get lesser fixed terms. Proportionality would be manifest. However, the amendment that he accepted in its place, as well as the further requirement of mandatory consultation before release, suggested a more limited concern. Judicial intervention would ensure that the most culpable murders are not released too early as a result of executive leniency. 3. THE NEW SYSTEM IN OPERATION The major changes to the law relating to murder and the penalties for it introduced by the 1957 and 1965 Acts gradually made their effects felt in practice. From 1957 to 1976 the

Section 1(1) of the Murder (Abolition of the Death Penalty) Act. Parliamentary Debates, House of Lords, Vol. 268 (5th series) cols. 1211-1212, 27 July 1965. For a perceptive view of the political process involved, see Lord Windlesham, Responses to Crime, Vol. 2, Oxford: Clarendon Press, 1993, 308-10. Section 1(2) of the Murder (Abolition of the Death Penalty) Act. Section 2. 92

England and Wales overall number of lifers increased tenfold.62 The changes were not all attributable directly to changes in the prescribed punishment for murder.63 One of the most startling developments was the decline in verdicts based on insanity. Between 1957 and 1973 the percentage of such verdicts in cases of persons charged with murder fell gradually from 45 percent to only 3.6 percent.64 However, insanity pleas were largely replaced by pleas of diminished responsibility, which by 1973 were accepted in 37.8 percent of murder trials.65 The result of this change, together with developments in the law relating to provocation, was that manslaughter verdicts became more frequent. It is worth emphasising that, although the possibility remained that persons convicted of this crime would face life imprisonment, they were clearly prepared to take this risk rather than face the mandatory indefinite detention in a psychiatric facility that followed from being declared insane. At the same time there was a significant increase in the number of life sentences imposed for non-homicide crimes by courts exercising their discretion to do so. Such sentences had been very rare in the 1940s and 1950s. From 1958 to 1965 the percentage of life sentences imposed for non-homicide crime varied from 0 to 6 percent, whereas from 1966 to 1976 the proportion ranged from 10 to 26 percent.66 This change was not primarily due to the setting of life imprisonment as a maximum sentence in new legislation, but to the courts taking the initiative to impose life sentences for offences (usually common law offences) for which life imprisonment was a competent sentence, although not one that had been frequently used for this purpose in the past. This initiative of the courts in using their discretion to impose life sentences is of particular importance, as it brought with it some fundamental judicial reflections on when a life sentence should be used. This process started in the mid-1950s when in a number of cases the Court of Criminal Appeal replaced a series of fixed-term prison sentences with life sentences because the offenders were dangerous but could not be dealt with under mental health legislation.67 An interesting aspect is that the courts held that for offenders initially sentenced to long fixed terms of 18 and 15 years respectively it was in fact being merciful, as the Home Secretary in his discretion could, and implicitly would, release them at an earlier stage than they would otherwise have been released. In 1967 the judicial development of the law governing discretionary sentences was crystallised in the decision of the Court of Appeal (Criminal Division) in the case of R v

From 122 to 1 257: Advisory Council on the Penal System, Sentences of Imprisonment: A Review of Maximum Penalties, London: HMSO, 1978, 99 para 223. Although these did increase from 20 in 1968 to 97 in 1976: Ibid., 217 (Appendix O Table 1). Home Office, Report of the Committee on Mentally Abnormal Offenders (Cmnd. 6244), London: HMSO, 1975. Ibid. See also Richard F. Sparks, '"Diminished Responsibility' in Theory and Practice", (1964) 27 Modern Law Review, 9. Advisory Council on the Penal System (n. 62) 99 para 222. See in particular R v Cunningham [1955] Criminal Law Review 193; R v Grantham [1955] Criminal Law Review 386; R v Holmes [1955] Criminal Law Review 578. 93

Chapter 3 Hodgson.™ It ruled that a court could only exercise its discretion to impose a life sentence: "(1) where the offence or offences are in themselves grave enough to require a very long sentence; (2) where it appears from the nature of the offences or from the defendant's history that he is a person of unstable character likely to commit such offences in the future; and (3) where the offences are committed the consequences to others may be specially injurious, as in the case of sexual offences or crimes of violence."69 The limitations set by the criteria in Hodgson's case placed very important restrictions on the use of life imprisonment. The requirement of a grave crime was recognition, absent in the 1950s cases, that life imprisonment was always a potentially highly invasive penalty. It could not be used for an offender convicted of a minor offence who might be dangerous in the future. At the same time, the criteria were cumulative. This meant that the fact that a crime was very serious was not enough to justify a life sentence. Given that, at the time, courts were reluctant to impose sentences of more than 20 years, it meant that in practice a determinate sentence of 20 years was the effective maximum for all crimes in English law except murder and those that qualified for life imprisonment under the Hodgson criteria. At the same time the twin elements of the seriousness of the offence and the dangerousness of the offender meant that it was being recognised that there would be a point where a lifer was being held only because of the continuing risk that he posed to the public. This was the beginning of the idea that these discretionary life sentences consisted of a penal element, which was related to the offence, and a period of further detention, which had to be served only for as long as the offender was dangerous. The second criterion, that the person should be of "unstable character" and "be likely to commit such offences in the future", also requires further explanation. At the time that Hodgson was decided, the court would usually have had the option of imposing a hospital order on an offender who was suffering from a "mental disorder" and ensuring his indefinite detention in that way. A life sentence was therefore used mostly for cases where an offender's unstable character manifested itself in a more loosely defined instability of personality. However, the boundary between offenders to be detained indefinitely in the mental health system and those sentenced to life imprisonment was blurred. In the 1966 case of R v Gunnel,10 for example, the Court of Appeal upheld a sentence of life imprisonment for a series of rapes imposed on an offender with a serious mental disorder, on the basis that the offender had often escaped from mental hospitals in the past.

68 69

70

94

(1968)52CrAppR113. At 114. (1966)50CrAppR242.

England and Wales Two further developments complete the picture of the system of life imprisonment as it emerged in the 1960s. The Criminal Justice Act 1967 brought the procedure for the release of discretionary lifers formally into line with that for mandatory life sentences by requiring the Home Secretary to consult the Lord Chief Justice and, if available, the trial judge as well before releasing a prisoner sentenced to life imprisonment.71 The second change was of more general import. The same Act introduced a comprehensive parole system for the first time. The overall intention of the new system was to provide prisoners with an incentive to reform and an opportunity to be released when their training had peaked.72 This explicitly reformist objective was grafted on to the existing system for the release of lifers. One of the functions of the newly created Parole Board was to advise the Home Secretary on the release of all lifers, with the exception of children. The Act went further and created a 'dual key' provision in terms of which the Home Secretary could not order the release of a lifer unless there had been a favourable recommendation from the Parole Board,73 as well as subsequent consultation with the required judges. Only where a prisoner had been released and was subsequently recalled by the Home Secretary, did he have to obey an instruction from the Parole Board that the prisoner be released immediately. The formal involvement of the Parole Board in the release process necessarily required an additional prior step. The Home Secretary had to decide when to refer the case of a prisoner serving a life sentence to the Parole Board so that it could consider his release. Here too the practice emerged of the Home Secretary informally consulting the trial judge and Lord Chief Justice. This practice, it should be emphasised, was quite separate from any public recommendation that, on rare occasions, the trial judge might make when passing sentence.74 It was not the formal consultation that the Home Secretary was obliged by law to undertake before deciding whether to order a release that the Parole Board had recommended. This practice had its roots instead in the custom that judges, after they had imposed the death penalty, would advise informally on whether the sentence should be commuted to one of life imprisonment. What criteria would the judges apply in making this informal recommendation and indeed what would the Home Secretary take into account when deciding whether to refer a case to the Parole Board? The answer was nowhere specified. Clearly the criteria would not be the same as those which the Home Secretary would apply when finally deciding on release, as at that stage he would also have at his disposal a recommendation of the Parole Board based on its expert assessment of whether the offender still posed a serious risk to society. The logical answer would have been that the decision on whether to refer would depend on what minimum term was regarded as an adequate punishment.

7

' Section 61 (1) of the Criminal Justice Act 1967. See the 1965 White Paper, The Adult Offender (Home Office, The Adult Offender (Cmnd 2582), London: HMSO, 1965. 73 Section 61(1) of the Criminal Justice Act 1967. 74 See s. 1(2) of the Murder (Abolition of the Death Penalty) Act 1965 discussed above. 72

95

Chapter 3 In summary: by the early 1970s life imprisonment had been firmly incorporated into English law as a mandatory sentence for murder for adults and juveniles and as a discretionary sentence for dangerous potential recidivists convicted of a range of serious offences. The shaping of the discretionary life sentence was largely the product of judicial intervention. The restrictions on when it could be imposed, showed some recognition of the complex nature of the life sentence as both a penalty and a form of preventive detention. The life sentence was never deliberately implemented for the full natural life of an offender. The decisions on the actual length of time to be served were made by the executive, without major involvement of the offender and with no requirement that reasons for decisions be given. As late as 1981 in Payne v Lord Harris of Greenwich and Others15 the Court of Appeal dismissed a claim that the offender had a right on grounds of natural justice to the reasons of the Parole Board for its recommendations. It claimed that it was impractical to produce such reasons and in any event the prisoner would probably know what the reasons were himself. While the judiciary had to be consulted, they too could not determine the release of a lifer or control his recall to prison. Broadly speaking, the release of lifers, like their treatment generally, remained in the virtually unfettered hands of paternalistic penal administrators. 4. CONTEMPORARY LIFE IMPRISONMENT: so WHAT HAS CHANGED? An observer comparing life imprisonment of the 1970s with the sketch of contemporary life imprisonment in England at the beginning of this chapter might be struck by how little has changed. The life sentence remains mandatory for murder76 and a discretionary sentence for an extended list of offences in theory now also has to be imposed automatically on certain recidivists, but the exceptions have been interpreted so widely as to make this only a slightly more restrictive form of discretionary sentence. It can still be imposed on juveniles. Although the average term served by lifers has increased somewhat and the overall numbers of lifers in the prison system significantly, in practice most, if not all, of them are still being released before they die in prison. Such an observation would be accurate but superficial, for it would miss the important shifts in the discourse about life imprisonment. Some of the initial triggers for this shift were to be found, as in the United States in the early 1970s, in a wider distrust of the authority of paternalistic administrators and of those who made expert judgments on matters such as dangerousness and risk. Psychological Survival, an ethnographic study of long-term prisoners by the radical criminologists, Cohen and Taylor, brought this new scepticism to bear on prison conditions.77 They portrayed the prisoners whom they [1981] 1 WLR754. See in general Barry Mitchell, Murder and Penal Policy, Basingstoke: Macmillan, 1990. Stanley Cohen and Laurie Taylor, Psychological Survival: The Experience of Long-Term Imprisonment, London: Penguin, 1972. 96

England and Wales studied (a group that included several lifers) from the prisoners' point of view and presented a picture of them experiencing imprisonment in a way that attacked their fundamental humanity. The fears of these prisoners and the resistance they offered to their conditions of detention were explained and justified. Their portrait of conditions, which was strikingly different from the positive picture that had inspired Sir Ernest Gowers in the 1950s to support life imprisonment as a viable alternative to the death penalty, had an impact beyond the circles of academic radicalism. Nowhere is this seen more clearly than in the work of Roger Sapsford, whose initial Government-sponsored research showed little clinical deterioration amongst lifers, but who recast his conclusions in the light of Cohen and Taylor's work to reflect the more subtly destructive impact that they found life imprisonment could have on these prisoners.78 This changing climate of opinion provided the backdrop to the emergence of debates about how life imprisonment should continue to be used. These debates were conducted publicly by various expert committees and, increasingly, by elected politicians and in the judgments of the courts, particularly the European Court of Human Rights. They have tended to develop a dynamic of their own and have continued, albeit with some unexpected results, despite the changes in the initial climate of opinion that provoked them. The public debates have had some impact on the imposition of life imprisonment. Their most profound influence has, however, been on procedures for the release of such prisoners, which have been modified both to meet stricter standards of legality and at the same time to reflect more explicitly justifications for the continuing use of life sentences. These developments have impacted unevenly on life sentences of different kinds, and in some ways emphasised differences between them. Accordingly, in the analysis that follows different types of life imprisonment are treated separately and arguments about the imposition of life sentences are separated from those about release. It has become apparent, however, that the distinctions are not watertight. Arguments that are developed to deal with one aspect of life imprisonment have had a major impact on others. a) Imposing life prior to the Human Rights Act 1998 (i) Mandatory life sentences for murder There has been no major change in the common law governing the offence of murder. This has not been for a lack of trying. The crime of murder remains a common law offence, although statute law has nibbled at its edges.79 Numerous attempts have been made to abolish the mandatory sentence of life imprisonment for murder and indeed to

Roger J. Sapsford, Life Sentence Prisoners: Reaction, Response and Change, Milton Keynes: Open University Press, 1983. For a carefully argued case that the claims of Cohen and Taylor were exaggerated if not devoid of all truth, see Nigel Walker, "The unwanted effects of long-term imprisonment" in Anthony E. Bottoms and Roy Light (eds.), Problems of Long-term Imprisonment, Aldershot: Gower, 1987, 183. Cf. the Law Reform (Year and a Day Rule) Act 1996 that abolished the rule that a person could only be convicted of homicide if the death occurred within a year of the defendant's act. 97

Chapter 3 reform the law governing homicide generally.80 The two are of course connected. As David Thomas, the leading English academic writer on sentencing law noted in 1978: "A reconstruction of the law of homicide must begin with a decision on the nature of the sentencing structure of the offences concerned. It would clearly be absurd to design a series of definitions on the assumption that a mandatory sentence in some form will continue to exist for murder, and then enact those definitions against the background of a discretionary sentence." 81 The question of giving judges discretion on whether to impose life sentences for murder was first raised in 1965, mostly by the senior judges themselves in their somewhat anomalous position as unelected legislators in the upper house of Parliament. The ability of the judiciary to challenge in their judicial capacity the subsequent legislation, which did not give them this power to decide on whether life imprisonment should be imposed for murder but made it mandatory that they do so, was of course limited in the absence of a justiciable bill of fundamental rights. Nevertheless, given the relatively consensual way in which English penal policy was developed at the time, the possibility remained that, as the new system of punishing convicted murderers evolved, the courts would be given a discretion to decide whether or not to impose life sentences. Certainly, there was initially no indication of a major disagreement on penal policy between the judiciary and other branches of the penal policy-making elite. A consensus that it was desirable for the courts to have a discretion to decide on whether a life sentence should be imposed for murder was also not immediately apparent even among penal policy experts. In 1973 in an interim report of the Criminal Law Revision Committee, a body which, typically, included both senior members of the judiciary, academic lawyers and penologists, a large majority still held that there were "overwhelming advantages" in the mandatory life sentence for murder.82 They saw these in the first instance in the discretionary power that it gave the authorities over all murderers. The mandatory life sentences enabled them to protect the public against recidivists by keeping offenders inside for long periods and recalling those who showed signs of reoffending. At the same time the authorities had the power to release those who had committed less heinous murders and who were no longer dangerous. The Committee also addressed what it perceived to be the primary criticism of the mandatory life system. It denied that life sentences were in practice too short, pointing out that the terms actually

One of these was in the draft Criminal Code proposed by the Law Commission: Codification of the Criminal Law: A Report to the Law Commission (Law Com 143), London: HMSO, 1985. For a recent overview, see Andrew Ashworth and Barry Mitchell (eds.), Rethinking English Homicide Law, Oxford: Oxford University Press, 2000. David Thomas, "Form and Function in Criminal Law" in P. R. Glazebrook (ed.), Reshaping the Criminal Law: Essays in Honour of Glanville Williams, London: Stevens and Son, 1978, 27. See also the discussion of this proposition by Martin Wasik, "Sentencing in Homicide" in Ashworth and Mitchell (n. 80) 167-192. Criminal Law Revision Committee, Twelfth Report: Penalty for Murder (Cmnd. 5184), London: HMSO, 1973, 13 para 22. 98

England and Wales served by lifers, who after 1965 would include also those convicted of the most heinous murders, would gradually increase. Most interestingly, it dealt with the criticism by those who were opposed in principle to mandatory sentences, since it deprived judges of the powers that they possessed "in all other cases, to distinguish between murders of different gravity in the sentence" they impose.83 The defence of the status quo was that the release procedure, which had operated since 1967 gave the judiciary an increased role in this procedure both because they were consulted and because they were involved in the parole process. Particularly revealing was the 1970 Annual Report of the Parole Board, which the Committee quoted with explicit approval. In it the Parole Board claimed that with indeterminate sentences such as life imprisonment its function assumed a sentencing character. The Board explained: "The question is not simply whether the conditions, bearing in mind the nature of the offence, are such as to justify the granting of parole. The primary question is whether the time served is appropriate to the crime."84 The overall justification for the status quo put forward by the Criminal Law Revision Committee was essentially that the post-sentence proceedings did achieve effective proportionality between the crime and the sentence served, albeit in a roundabout way. Moreover, the Committee argued that at the sentencing stage courts could not judge which murderers could best be released for the protection of the public. The 1973 defence of the mandatory life sentence for murder by the Criminal Law Revision Committee was a relatively rare event. It was soon challenged by two other Government appointed expert committees. In 1975 the Butler Committee on Mentally Abnormal Offenders commented that "many in the legal and related professions believe in the abolition of the mandatory life sentence and in giving the courts the widest possible discretionary powers in sentencing" but that "such a change is seldom advocated publicly because of the fear that it will be unlikely to commend itself to public opinion".85 The Committee had no fear of this kind. It went on to argue that many murderers could be adequately punished by lesser sentences. In response to the arguments of the Criminal Law Revision Committee, that judges could not decide at sentence how long murderers should serve in prison for the protection of the public, the Butler Committee pointed to the anomaly that for those whose homicides had been adjudged to be manslaughter rather than murder because of the diminished responsibility of the offender, the courts had the discretion to impose a life sentence or a fixed term. Yet these offenders, because of their mental condition, arguably were more of a danger to the public than those convicted of murder. In 1978 the Advisory Council on the Penal System, in the course of an overall review of maximum penalties, also argued that life imprisonment should cease to be mandatory for murder. It denied that the mandatory penalty for murder had the effect of marking out Ibid., 10 para 13. Ibid., 8 para 9. Home Office/ Department of Health and Social Security, Report of the Committee on Mentally Abnormal Offenders (Cmnd. 6244), London: HMSO, 1975, 245 para 19.11. 99

Chapter 3 murder as a unique crime, for other crimes were punished by the same sentence.86 Like the Butler Committee, it engaged directly with the findings of the Criminal Law Revision Committee. It regarded as "exaggerated" the fear that the selection of sentences for murder by the judges would result in their embroilment in public controversy.87 As with any other type of offence, the appellate process would require an appropriate sentencing framework. The life sentence would remain available for dealing with truly dangerous offenders.88 The Advisory Council on the Penal System explicitly endorsed the positive arguments of the Butler Committee in favour of a discretionary life sentence for murder. It emphasised that it would mean that the complicated defences of provocation and diminished responsibility would not have to be deployed to reduce murder to manslaughter in cases where a sentence of life imprisonment would be inappropriate. This would eliminate a number of conceptual difficulties and allow the law of murder to be clarified.89 In 1980 the Criminal Law Revision Committee reconsidered its earlier interim finding in favour of the retention of the mandatory life sentence for murder.90 By now the Committee was more or less evenly split, with possibly a small majority in favour of a discretionary life sentence. In the event the Committee made no recommendation on the matter but simply rehearsed the arguments for and against. This was the last 'expert' body to show any significant degree of support for the retention of the mandatory life sentence for murder. In 1989 the matter came to a political head when a Select Committee of the House of Lords launched an extraordinarily detailed investigation into both "the scope and definition of the crime of murder" and "the question whether imprisonment for life should remain a mandatory rather than a maximum penalty for murder".91 By this time the Law Commission itself had abandoned the opposition to the discretionary life sentence expressed by some members of the Criminal Law Revision Committee and argued that a discretionary life sentence would better fit the codification of the law of murder it supported. There was only limited continued support for the retention of mandatory life sentences, most prominently from the Association of Chief Police Officers of England and Wales, on the grounds that "public satisfaction" 92 and the uniqueness of the offence demanded it.

Advisory Council on the Penal System (n. 62) 107 para 240 Ibid., 108 para 241. Ibid., 108 para 242. Ibid., 109 para 245. Criminal Law Revision Committee, Fourteenth Report: Offences against the Person, (Cmnd 7844), London: HMSO, 1980. Select Committee of the House of Lords on Murder and Life Imprisonment, Report of the Select Committee of the House of Lords on Murder and Life Imprisonment (3 volumes) (HL Paper 78), London: HMSO, 1989, Vol. 1, 9 para 1. There was also a third term of reference, namely to consider "the working of the arrangements for reaching decisions on the release of those serving life sentences for murder" (Ibid). Ibid., Vol. 3, 339. 100

England and Wales In its conclusions the Select Committee took a relatively conservative view on the law of murder, which included accepting the existing defences of provocation and diminished responsibility, and concentrated on arguing strongly for the introduction of a discretionary life sentence for murder to replace the existing mandatory sentence. It was particularly severe on the argument that had been put for the retention of the mandatory life sentence on the grounds that "murder is a uniquely serious offence in that typically it consists in intentional and unprovoked killing of another human being and that it follows that it should attract a distinctive penalty in order to mark the revulsion with which society regards it".93 The Committee responded strongly that not all murders were in fact "uniquely serious" but that murders varied greatly in their degrees of culpability and that the definition of murder was so wide that it encompassed crimes where the offender may have intended to wound rather than to kill. Moreover, the life sentence was not unique to murder.94 The Select Committee also recommended that, where a life sentence was imposed, the trial judge be required to pronounce in open court the period of years that were "considered necessary to satisfy the requirements of retribution and deterrence".95 This "penal sanction", the Committee's term, would be subject to appeal. After that, a judicial tribunal should consider the actual release of the offender.96 The question of the release of lifers is considered more carefully below: For the moment it is important to note that the proposed release procedure emphasised the growing insight into the life sentence as having the dual functions of a penalty and a protective device. It was also important for its explicit recognition that the life sentence was a particularly harsh penalty. Significantly, the Committee does not seem to have been arguing for a discretionary life sentence along the lines of the Hodgson criteria, which always consisted of a determinate period of less than life followed by an indeterminate period of further detention for the protection of the public, and which was to be imposed only on those offenders who might be dangerous. In a key passage the Select Committee commented: "After the introduction of a discretionary sentence for murder, the Committee anticipate that the average length of time served under a life sentence will be considerably longer than it is now. The Committee expect that their proposals will lead to very lengthy penal sanctions being set in the most grave cases. In some cases, this may result in imprisonment for the rest of the prisoner's life."97 The acceptance of the possibility of a full life sentence for the most heinous murders is underlined in the response of the Select Committee to the proposal of the National Council for Civil Liberties that the life sentence be abolished entirely and that the courts

Ibid., Vol. 1,33 para 108A. Ibid., para 108B. Ibid., Vol. 1,50 para 202. Ibid.,51 paras 206-7. Ibid., 47 para 178 (emphasis added). 101

Chapter 3 be allowed only to set a fixed-term sentence. The National Council for Civil Liberties argued that the life sentences "were contrary to the basic tenets of English criminal justice whereby citizens should be punished for what they do, not for what they might do".98 In evidence the National Council for Civil Liberties suggested a maximum fixed term of 30 years, subject to the same parole and remission rules as other sentences. From the examination of the witnesses for the National Council for Civil Liberties it is clear that the Select Committee regarded such a sentence as too short to deal with the most serious murders. In the end the Select Committee avoided engaging the wider point that all life sentences gave the State an unacceptable level of control over offenders by ruling, in its final review of the evidence, that the abolitionist case was beyond its brief." The conclusions of the Select Committee of the House of Lords were publicly supported by penal reformers100 and provided the basis for the intervention by the Upper House on the penalty for murder in the crucial debates on what was to become the Criminal Justice Act 1991. The 1991 legislation was a major reformist initiative, which attempted to develop a coherent approach to English sentencing law.101 Both the White Paper that preceded it and, slightly more ambiguously, the Bill that was put to Parliament, emphasised the importance that sentences should be based on the just deserts of the offender concerned. There was to be specific provision for longer sentences for sexual and violent offences to protect the public from harm, but general deterrence was not to be a primary sentencing objective. This overall philosophical stance was not very different from the shared approach of the judiciary and other penological experts set out in the 1989 Select Committee report. If the proposition had been accepted that not all murders were equally heinous and not all murderers particularly dangerous, then the case for differentiation by allowing a range of sentences would have been overwhelming. Unfortunately, the Government did not accept this view. The original Criminal Justice Bill did not mention the punishment for murder. When the Bill reached the House of Lords, however, a series of amendments were introduced, which were designed to remove the obligation on the courts to impose a mandatory life sentence for murder (as well as to reform the system for releasing all prisoners serving life sentences). Lord Windlesham, a former Government minister and chairman of the Parole Board, who himself was one of the leading participants in these developments, gives a lively account of how the amendments were adroitly piloted through the House of Lords by a coalition of independent members, representatives of all parties and senior judges.102 The coalition was sufficiently powerful to defeat the majority that the Government could 98 99 100

101 102

Ibid., Vol. 2, 327. Ibid., Vol. 1,32 para 120. See for example, Vivien Stern, the Director of the NACRO (The National Association for the Care and Resettlement of Offenders), " Keep life sentences only for the few", The Times, 4 February 1991, 3. The Times itself supported the abolition of the mandatory life sentence for murder in a leading article titled, "Uncommon murderers", on 10 April 1991, 15. See in general Ian Dunbar and Anthony Langdon, Tough Justice Sentencing and Penal Policies in the 1990s, London: Blackstone, 1998, 86-99. Windlesham (n. 59) Vol. 2, 432.

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England and Wales normally muster in the Upper House. To avoid controversy the amendment did not mention abolition of the mandatory life sentence for murder directly. Instead, it simply stated: "No court shall be required to sentence a person convicted of murder to imprisonment for life."103 The House of Lords passed the amendment, but, notwithstanding all the subtlety, the Government blocked it persistently in the House of Commons. The Government was only prepared to concede on the question of the procedures for the release of prisoners sentenced to discretionary life sentences, a position into which it was forced by the decisions of the European Court of Human Rights.104 On the main issue of the mandatory sentence for murder it persisted in holding that a mandatory sentence of life imprisonment for murder was essential to indicate to the public that the law recognised the uniquely heinous nature of the crime of murder. In this respect a degree of proportionality to the seriousness of the actual offence committed could be achieved administratively. The amendment of the House of Lords did not become part of the Criminal Justice Act 1991 that was finally adopted. There is some irony in this development, since for crimes other than murder the Criminal Justice Act 1991 was a legislative attempt to impose a regime in which the seriousness of the offence alone would be at the heart of sentencing decision-making. The intention was to limit the role of other traditional justifications for sentencing such as deterrence and to reduce the extent to which courts could take into account factors such as the previous convictions of the offender. In respect of these wider goals the judiciary found themselves at odds with the legislator too. The concern though, was not, as it had been in the case of the mandatory sentence for murder, that the law would require them to impose sentences that were too heavy. Instead, the concern was that the legislative framework was too restrictive because it denied the courts the power to consider justifications for punishment and factors such as previous convictions that they thought to be appropriate. What the judiciary and their supporters objected to in both instances was the loss of judicial independence, which was portrayed as not only being undesirable but also as close to being constitutionally unacceptable. In the event, the courts succeeded in blunting the impact of the Act. The provision that was designed to make the seriousness of the offence the key to the sentencing decision was simply interpreted by the Court of Appeal as allowing deterrence to be considered too.105 The Government did not respond to this by amending the Act in order to make its original intention clearer. Instead, shortly after the Act had come into operation, the Government introduced some hasty amendments that removed most of the restrictions on allowing courts to consider previous convictions.106 These changes were less a triumph for judicial independence than a reflection of a change in the attitude to sentencing and punishment in the English penal policy. 1993 103 104 105 106

Ibid. Section 4 (b) (i) below. See in particular R v Cunningham (1993) 14 Cr App R (S) 444. Criminal Justice Act 1993. See the discussion in Dunbar and Langdon (n. 101) 107-109. 103

Chapter 3 also saw the murder of the two-year-old toddler Jamie Bulger. This caused an enormous upwelling of punitive public sentiment. When his killers, two ten-year old boys Thompson and Venables, were sentenced to "detention during Her Majesty's pleasure", an effective mandatory life sentence, its imposition was widely applauded and public campaigns were launched to ensure that it was enforced vigorously.107 In that climate the 1993 amendments were supported by the opposition Labour Party, which had begun to stake out a claim that it could be as tough on crime as the governing Conservative Party. It in turn had declared itself unconcerned about an increase in the prison population that might follow from the changes to the law, which would give the courts a freer hand to impose prison sentences by considering additional factors and arguments for doing so.108 Attempts to do away with the requirement of the mandatory life sentence for murder continued after 1991, but in this changing climate they were increasingly futile. Early in 1993 a private bill, the Penalty for Murder Bill, was passed by the House of Lords but not given legislative time by the Government in the House of Commons, with the result that it did not progress any further.109 In 1993 Lord Lane, the recently retired Lord Chief Justice, chaired an independent "Committee on the Penalty for Homicide" on behalf of the Penal Reform Trust. It too forcefully recommended abolition of the mandatory life sentence for murder, but to no avail.110 The penal reform group, Justice, published a report, Sentenced for Life, that came to the same conclusion in 1996.111 And the new Lord Chief Justice made another plea for the abolition of the mandatory life sentence in 1998.112 When in opposition in 1991 the Labour Party had voted against mandatory life sentences for murder,113 but as the 1990s progressed it too changed its policies to reflect its new toughness on crime. This shift in policy was widely accredited with having played an important part in the revival of its fortunes and its eventual coming to power after the 1997 elections. The final word for the moment on the topic of the abolition of the mandatory life sentence for murder through the political process was spoken by the Home Secretary in the Labour Government, Jack Straw, on 13 March 2000 when he told the House of Commons that he was "completely opposed" to abolishing the mandatory life sentence for murder.114

Ibid., 103 and 145. Ibid., 108. Lord Windlesham, Responses to Crime, Vol. 3, Oxford: Clarendon Press, 1996, 376. Committee on the Penalty for Homicide, The Report of an Independent Inquiry into the Mandatory Life Sentence for Murder, commissioned by the Prison Reform Trust, London: Prison Reform Trust, 1993. Justice, Sentenced for Life: reform of the law and procedure for those sentenced to life imprisonment, London: Justice, 1996. See Tom Bingham, "The Mandatory Life Sentence for Murder" (Newsam Memorial lecture on 13 March 1998 at the Police Staff College, Bramshill, reprinted in, The Business of Judging: Selected Essays and Speeches, Oxford: Oxford University Press, 2000, 331-343). Parliamentary Debates, House of Commons, Vol. 193 (6th series), cols. 868-74, 25 June 1991. Parliamentary Debates, House of Commons, Vol. 346 (6th series), col. 28, 13 March 2000. 104

England and Wales (ii) Discretionary life sentences In determining the penalty for murder judge-made law may have had no role in England but in the area of discretionary life sentences the opposite was true. As we have seen, in Hodgson's case in 1967 the Court of Appeal intervened decisively and restricted the imposition of life sentences to cases where the offender had committed a serious offence because of some mental instability and was likely to commit a further offence of a sexual or violent nature. This was a relatively restrictive interpretation, as the statute provided for a wide range of offences for which life imprisonment was the maximum penalty. The crucial question was whether this precedent would continue to shape the law governing discretionary life sentences. In 1978 the Advisory Council on the Penal System reviewed provisions for the imposition of life sentences as well as the then current case law. 115 It identified 50 statutory offences for which life imprisonment was specified as a maximum sentence and another 15 common law offences for which no maximum penalty was set.116 In practice, apart from offences related to homicide, life imprisonment had in the ten years prior to 1978 only been imposed for serious wounding, buggery, rape, incest, unlawful intercourse with a girl under 13, burglary, aggravated burglary, robbery, arson, criminal damage endangering life and kidnapping.117 In addition, laws had been passed in the same ten years setting life imprisonment as a maximum penalty for possessing firearms with the intention to endanger life, using firearms to resist arrest, hijacking an aircraft in flight, destroying, damaging or endangering aircraft and for some offences relating to biological engineering.118 The ACPS recorded that it 'disliked' indeterminate sentences because of their negative effects on prisoners serving life sentences. The insecurity that they faced made them anxious. This was heightened, the Council found research had demonstrated, "after the 'normal' release point [was] passed".119 The Council admitted that, as it did not favour indeterminate sentences, it should, in any neatly logical penal system, have wished to see the complete disappearance of the power to impose life imprisonment for all nonhomicide offences.120 It did not regard the life sentence in most cases as appropriate to the gravity of non-homicide offences. However, in order to deal with "a few cases - for instance, the psychopath convicted of a number of offences of rape - where the gravity of the offence and the mental instability of the offender raise acute problems", it was prepared to retain the discretionary life sentence for non-homicide offences.121 In fact its proposed reforms were even more modest. It proposed that the discretionary life sentence be retained as a maximum penalty for all the offences for which it had been

Advisory Council on the Penal System (n. 62). Ibid., 214-216, Table N. Ibid., 104 para 233. Ibid. Ibid., 100 para 226. Ibid., 103 para 232. Ibid., 104 para 233. 105

Chapter 3 used in the previous ten years or been newly enacted in the same period.122 For the rest it asked the courts not to impose life sentences as a strategy of mercy, that is, on the basis that the offenders might be released earlier than they would be, had a determinate sentence appropriate to the offender been imposed.123 The Floud committee of inquiry into "the law and practice in relation to 'dangerous' offenders",124 a group of leading liberal penal reformers convened not by Government but by the Howard League for Penal Reform, was ostensibly more radical in its approach. It proposed the abolition of all life sentences for "non-homicidal" offences.125 Its reasoning was based on a highly critical review of the jurisprudence on discretionary life imprisonment. It concluded damningly: "As a protective device against the exceptional 'dangerous' offender the sentence of life imprisonment has not established itself as a satisfactory instrument of penal policy. Though it is imposed sparingly and the Court of Appeal does not hesitate to take a cool view of the degree of protection to which the public is entitled and a hard look at the case for an indeterminate sentence, the established criteria justifying its imposition have lacked clear exposition. So there is absent from the jurisprudence any discussion about special procedural safeguards in the presentation of evidential material establishing any one or more of the criteria; the courts have not provided any guidance as to the type and quality of evidence required for the purpose of ensuring a proper application of the criteria. In short, the discretionary life sentence lacks appropriate legal prescription."126 The counterproposals of the Floud committee seemed more restrictive, as they suggested that a determinate 'protective sentence' be imposed instead of discretionary life imprisonment. Such a sentence could only be imposed on someone who had "done, attempted, risked, threatened or conspired to do grave harm"121 and who had previously committed a similar offence. In fact, these provisions were not as restrictive as they appeared. The Committee specifically rejected the radical American critique of dangerousness as a ground for extended sentences. Its key concept of "grave harm" was fairly widely defined and there was no upper limit on the 'determinate' protective sentences, except that they had to be "proportional to the gravity of the anticipated harm

122 123 124

125

126 127

Ibid. Ibid., 105 para 234. Its report is published as Jean Floud and Warren Young, Dangerousness and Criminal Justice, London: Heinemann, 1981. In the description of its brief at ix the term 'dangerous' was placed between quotation marks. There are strong indications that the Floud Committee favoured the scrapping of the sentence of life imprisonment for murder as well as manslaughter (e.g. at 155) but probably regarded that as beyond its brief. Floud and Young (n. 124) 75. Ibid., 155 (emphasis in the original).

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England and Wales and court's estimate of the duration of the risk".128 Much was to be left to the discretion of the courts, albeit within a new framework. In the event, neither the systematic reduction of the number of offences for which discretionary life imprisonment is a maximum sentence proposed by the ACPS, nor the root and branch reforms of the Floud committee were implemented. The next important legislative reform added to the range of offences for which discretionary sentences could be imposed. In 1985 a new maximum penalty of life imprisonment was set for at least one new category of offences, namely dealing in the most dangerous drugs.129 The introduction of the new maximum penalty was unanimously supported in Parliament accompanied by much populist crime-control rhetoric. As the sponsor of the new law explained to the House of Commons: "By increasing the maximum penalty to life imprisonment, we hope to achieve two aims - to create a far more effective deterrent, and to ensure that those who persist in trafficking in hard drugs will go to prison for a long time."130 The Court of Appeal responded by adjusting upwards to an indeterminate maximum its guidelines for sentencing drug dealers, which previously had been based on a maximum of 14 years.131 Although life imprisonment has recently been imposed in a small number of cases for dealing in drugs,132 it should be noted that the general restrictions on the use of preventive sentences introduced by the Criminal Justice Act 1991 apply to it. Seriousness of the offence, the primary criterion of the 1991 Act, alone is not enough to allow the imposition of a discretionary life sentence.133 In terms of s. 2(2)(b) of this Act134 a term longer than justified by the seriousness of the offence in order to protect the public from serious harm can only be imposed if the offence is of a violent or sexual nature. It may be very difficult to prove that the offence of dealing in drugs meets this last requirement. Certainly, the Court of Appeal has quashed a discretionary life sentence imposed for a crime for which life imprisonment was otherwise a competent sentence on the grounds that it was not of a sexual nature nor, in this instance, of a violent nature.135 This last case highlights a wider point: the courts have continued to impose discretionary life sentences relatively restrictively: as Andrew Ashworth has noted, Hodgson's case is one of the longest surviving precedents in English sentencing

128 129 130 131

132 133 134 135

Ibid. So-called "Class A" drugs. See the Drugs (Penalties) Act 1985. Parliamentary Debates, House of Commons, Vol. 77 (6th series), cols. 562-3 19, April 1985. The earlier leading case of R v Aramah (1982) 4 Cr App R (S) 407 was qualified by R v Bilinski (1987) 9 Cr App R (S) 360 and R v Singh (1988) 10 Cr App R (S) 402. The qualifications allowed for unlimited maxima for the relevant offences. See Table 4 above. See Martin Wasik in Blackstone's Criminal Procedure, London: Blackstone, 2001, 1798-9 para E1.23. Re-enacted as s. 80 of the consolidated Powers of Criminal Courts (Sentencing) Act 2000. R v Robinson [1997] 2 Cr App R (S) 35. 107

Chapter 3 jurisprudence.136 Admittedly, there appears to be a slight loosening of the requirements for determining whether an offender met the qualification set in Hodgson of instability of character. Medical evidence, which some judgments appeared to suggest was essential, is not now required as a matter of course.137 Nor is it necessary that the offender be mentally ill. All that is required is that the offender be considered to be a danger to the public for an indefinite period. This was a change of emphasis rather than a major shift. If anything, the first requirement that the offence itself must be serious enough to require a very long sentence, has been strengthened. The alternative line of cases that allowed the life sentence to be imposed as a form of mercy has been overruled. The leading case on the question of the seriousness of the offence is now the 2000 decision in R v Chapman138 where the Lord Chief Justice, Lord Bingham, noted that in a number of earlier cases not enough emphasis had been placed on seriousness. In Chapman the Court of Appeal upset a sentence of life imprisonment for arson imposed on an offender who had committed an offence that justified a tariff period of only a year because the initial offence was insufficiently serious. Lord Bingham explained that there was a relationship between the seriousness of the offence committed on the one hand, and, on the other hand, the likelihood of a further offence being committed and the likely gravity of such a future offence. The greater the likelihood of the offender reoffending by committing another serious offence, the less emphasis the court need place on the initial offence. However, such an offence should always meet a threshold requirement of being relatively serious. The conclusion is that the imposition of discretionary life sentences continues to be governed by case law that attempts with some subtlety to restrict the life sentence to "the most exceptional circumstances" where the offences are serious and the mental state of the offender "makes them dangerous to the life or limb of members of the public".139 (Hi) Automatic life sentences For all its subtlety, judicial development of the law on the imposition of life sentences for crimes other than homicide has not gone unchallenged in the party political process. An implication of the challenge has been that the courts have not been using life imprisonment readily enough in order to protect the public against dangerous offenders. This challenge emerged in the mid-1990s as part of what had become a highly politicised debate in which both major political parties sought to outbid each other in proving that it was tough on crime. The 1993 amendments to the Criminal Justice Act had allowed for an increase in the prison population by enabling the courts to take into account additional factors that would enable them to send more offenders to prison. In the subsequent public debates the Conservative Home Secretary roundly claimed that "prison works",140 a 136

Ash worth (n. 11) 190. Attorney-General's Reference (no. 32 of 1996 (Whittaker)} [1997] 1 Cr App R (S) 261. 138 [2000] 1 Cr App R (S) 377. 139 Cf. Lord Lane CJ in R v Wilkinson (1983) 5 Cr App R (S) 105 at 108-109. 140 Speech to the Conservative Party conference on 6 October 1993 by the Home Secretary, Michael Howard, discussed in Dunbar and Langdon (n. 101) 115-119. 137

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England and Wales gnomic view for which the statistical support was modest at best, but which was not challenged directly by the Labour Opposition. Once this view had been firmly adopted, it became attractive to the politicians to think of ways of compelling the courts to make more use of imprisonment. In March 1996 the Conservative Government published a White Paper141 providing for mandatory sentences for various offences. Included amongst these was a provision designed to ensure that serious violent and sexual offenders convicted for a second time would automatically receive a life sentence with the tariff fixed by the sentencing judge. The life sentence would follow unless there were "genuinely exceptional circumstances".142 The White Paper was not attacked directly by the parliamentary opposition, which was cultivating its own 'tough-on-crime' image. However, the judiciary opposed it strongly and publicly on the general grounds that mandatory sentences of this kind were unjust, as they could result in sentences that were disproportionately heavy in relation to the crimes committed. Moreover, they were not an effective way of controlling crime.143 The judges emphasised too that the courts were likely to interpret exceptional circumstances narrowly and that provision for departure on this ground was unlikely to be sufficient to allow proportionate sentences to be imposed. The White Paper was also subject to strong criticism from academics.144 A particularly damning critique was that of Hood and Shute, who showed that the proposed new life sentence would only cover a small percentage of prisoners found by the Parole Board to be dangerous in the previous year. Their objective was not to argue for an even wider definition of offenders who should receive automatic life sentences, for even on the proposals of the White Paper a third of the prisoners who would be condemned to life would not, on the basis of the Parole Board's own evaluation, be dangerous. What the paper of Hood and Shute highlighted, was the perennial problem of identifying those offenders who were so dangerous that they should be visited with a truly indeterminate sentence.145 The Crime (Sentences) Bill cast the White Paper's proposals into legislative form largely unaltered. In the public political process critics were more circumspect than the academics or judges had been. The Government defended the new legislation on the basis that it would not result in disproportionate sentences in that, as with discretionary life sentences, the sentencing court would set a tariff period that allowed the offender to be considered for release on licence at the same time as an offender sentenced to a 141

142 143

144 145

Home Office, Protecting the Public: The Government's Strategy on Crime In England and Wales (Cm 3190), London: HMSO, 1996. For a useful critique of this paper, see Ralph Henham, "Back to the Future on Sentencing; The 1996 White Paper", (1996) 39 Modem Law Review, 861. Home Office (n. 141) 46 para 10.1. See the public speeches by Lord Taylor and Lord Bingham the then current and future Lords Justice respectively, in Ashworth (n. 11) 50. See also Estella Baker, "From 'Making Bad People Worse' to 'Prison Works': Sentencing Policy in England and Wales in the 1990s", (1996) Criminal Law Forum, 639. See Ralph Henham (n. 141) 861. Roger Hood and Stephen Shute, "Protecting the Public: Automatic Life Sentences, Parole and High Risk Offenders", [1996] Criminal Law Review, 788. Ibid. For a contemporary account of these problems, see Nigel Walker (ed.), Dangerous People, London: Blackstone, 1996. 109

Chapter 3 determinate sentence for the same offence would have been considered for parole. If the offender did not present a further serious risk to the public, the Parole Board, again as with discretionary lifers, would have the authority to order his release.146 The opposition Labour Party did not oppose the Bill in the House of Commons, although in respect of the provision for automatic life sentences for second violent and sexual offences unless "exceptional circumstances" pertained, it did express some doubt about the inclusion of "wounding with intent" as one of the qualifying offences.147 In the House of Lords a group of peers led by the new Lord Chief Justice, Lord Bingham, opposed the Bill and were eventually able to achieve some amendments.148 In the case of the provision dealing with mandatory life imprisonment the amendment was relatively minor, however. The grounds for departure from the general rule relating to exceptional circumstances were reformulated to include exceptional circumstances related to both the offence and the offender.149 The serious offences, which when committed a second time bring the automatic life sentence into effect, are: (a) attempted murder, soliciting murder and conspiracy or incitement to murder; (b) manslaughter; (c) wounding or causing grievous bodily harm with intent; (d) rape or attempted rape; (e) sexual intercourse with a girl under 13; (f) various offences relating to firearms; and (g) robbery involving a firearm.150 As we have seen, the courts have recognised in the case of discretionary life sentences that the sentence has to be proportionate to the crime committed and the dangerousness of the offender, with a minimum degree of seriousness of the crime being required before a life sentence could be considered. Given that senior members of the judiciary had expressed their opposition to the new life sentence legislation so forcibly, could they interpret it in such a way that it did not really alter the desiderata that had been developed for the imposition of life sentences? One potential way out was clearly to make liberal use of the provision for departing from the automatic life sentence if "exceptional circumstances" existed justifying such an interpretation. In his extra-curial pronouncements the Lord Chief Justice, Lord Bingham, had warned that this might prove difficult to do. When the first major case on the question, that of R v Kelly,151 came to be considered by the Court of Appeal Lord Bingham adopted the same view. The accused had been convicted of an assault involving grievous bodily harm more than ten years after being released from prison for a previous See the speech of the Home Secretary, Michael Howard, reported in Parliamentary Debates, House of Commons, Vol. 284 (6th series), cols. 911-915,4 November 1996. Parliamentary Debates, House of Commons, Vol. 284 (6th series), col. 930, 4 November 1996. Parliamentary Debates, House of Lords, Vol. 577 (5th series), cols. 983-990, 27 January 1997. The provision, which was originally s. 2 of the Crime (Sentences) Act 1997, was re-enacted unchanged in recent consolidating legislation: s. 109 of the Powers of the Criminal Courts (Sentencing) Act 2000. Section 109(5) of the Powers of the Criminal Courts (Sentencing) Act 2000. [2000] 1 QB 198 (CA). 110

England and Wales robbery committed when he was a young man. His crime was of such a kind that, Lord Bingham noted, had it not been for the new Act, life imprisonment would not have been considered seriously. Nevertheless, he found that a sentence of life imprisonment had to be upheld. The offender was not assisted by the time that elapsed since the earlier offence, his youth when he had committed his first offence, the different nature of the current offence and the absence of evidence that he was a danger to the public. Lord Bingham explained sternly that the word exceptional had to be given its ordinary meaning. "To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered."152 The Court did attempt to compensate to some extent for the harshness of the life sentence which it felt itself required to uphold by declaring a short tariff period of two and a half years153 after which the requirements of retribution would be met and the offender could be considered for release. As the Court had recognised in the discretionary life cases, this did not mean that the offender was in the same position as a person who had been sentenced to such a relatively short period. It was nevertheless an indication of the true attitude of the court, for it would not have countenanced the imposition of such a short tariff period when imposing a discretionary life sentence. An unusual feature of the decision was a passing remark by Lord Bingham that the interpretation of "exceptional circumstances" may have been different had the 1998 Human Rights Act been directly applicable.154 As the law then stood, the European Convention on Human Rights155 could only be used as an aid to interpretation where legislation was ambiguous and in this case, in his view, it was not. The Human Rights Act, which was designed to incorporate the European Convention directly into English law, had not yet come into operation. The significance of Lord Bingham's remark should not be underestimated, for it contained the suggestion that if the automatic life imprisonment provision was tested against fundamental principles, it might well be found wanting. The decision in Kelly was followed in a number of subsequent cases, decided before the Human Rights Act came into effect in October 2000, that interpreted the words, "exceptional circumstances", narrowly.156 However, the last judicial word had not been spoken on the scope of automatic life sentences.157

152 153 154 155 156

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At208C. This was the equivalent of a determinate sentence of six years allowing for time served and parole. A1210A-C. Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222. Attorney-General's Reference (no. 53 of 1998) [1999] 2 Cr App R (S) 185; Attorney-General's Reference (no. 71 of 1999) [1999] 2 Cr App R (S) 369; but cf. R v Buckland [2000] Criminal Law Review 307, where the case of an offender who used an imitation firearm in an extraordinarily incompetent way to attempt a robbery and who posed no real threat was held to constitute an exceptional circumstance. See section 5 below. Ill

Chapter 3 b) Implementing life At the beginning of the 1970s it was assumed that all life sentences were implemented in roughly the same way: that after offenders had served a period related to the seriousness of their offence and their degree of culpability, they would be released if they were no longer dangerous. The implications of these assumptions for the procedures governing the implementation of life sentences had not been subjected to close scrutiny by the courts. In the 1980s this began to change, as lifers began to challenge the procedures governing their release in both English courts and the European Court of Human Rights. These challenges typically raised questions about the justifications for the imposition of life sentences of various kinds and the procedures for evaluating whether those justifications still existed. If not, so the argument went, the offender should be released. In the course of these challenges claims were made that different types of life sentence were justified on different grounds. i) Discretionary and automatic life sentences The first challenges concerned prisoners serving discretionary life sentences. In a series of cases they began to argue that the clear distinction between the punitive or tariff part of their sentences imposed for the purpose of retribution and deterrence, and the further detention imposed for the protection of the public meant that they were entitled to additional procedural safeguards when their release from prison or subsequent recall were considered. In 1988 in the first of these cases to reach the Court of Appeal, R v Secretary of State for Home Department, ex pane Handscomb and Others^ the focus was on the practice of the Home Secretary to wait for three or four years before consulting the trial judge and the Lord Chief Justice about the length of the tariff period to be served before the further advice of the Parole Board should be sought on the release of the offender. Because of the cumbersome bureaucratic process of release this meant in practice that all lifers were automatically incarcerated for a minimum of six to seven years. Handscomb and his fellow prisoners argued that this was unreasonable as it might mean that they were being detained for longer than what was justified by their offence without consideration being given timeously to whether their further detention was justified by the need to protect the public. The key word here is 'unreasonable'. Quite independently of concerns about sentencing, English administrative law had been developing a much more robust test for judging the reasonableness of official administrative actions and for the judicial review of such actions generally.159 On the basis that the delay was unreasonable the court upheld (1988)86CrAppR59. In this case the Court considered whether in the current procedure there was so-called Wednesbury unreasonableness, that is, a decision so unreasonable that no reasonable authority could ever come to it, and held that the delay in determining the tariff was unreasonable in this sense. This somewhat tautological definition was originally derived from Associated Provincial Picture Houses Ltd. v Wednesbury Corp. [1948] 1 KB 225 and has provided the basis for the development of a general test of unreasonableness in English administrative law: See de Smith, Woolf and Jowell's Principles of Judicial Review (updated and 112

England and Wales the primary complaint of the prisoners and ruled that the judges should be consulted immediately after trial so that the tariff could be set promptly and injustice could not result because of procedural delay. Other procedural decisions of the English courts followed. Attention was paid to the question of the information that should be given to the prisoner to enable him to argue that he should be granted parole and to the standards to be employed by the Home Secretary in determining whether the prisoner continued to pose a risk to society. Arguments that prisoners should be given reasons for the decisions to refuse parole continued to be rejected,160 in line with the earlier decision in Payne v Lord Harris of Greenwich,161 but it was clear that, at least as far discretionary lifers were concerned, more attention generally was being paid to procedural correctness in the consideration of their release. Whilst these cases were proceeding through the English courts, other prisoners serving discretionary life sentences, having exhausted their remedies in England, began challenging the legality of their release procedure in terms of the European Convention on Human Rights. These challenges before the European Court of Human Rights162 in Strasbourg were an important step for the evolution of the law governing life imprisonment. In the case of English law this was potentially of considerable significance, for the European Court of Human Rights could test the law on life imprisonment against fundamental legal principles in a way that the English courts could not. For the wider development of an understanding of the acceptability of life imprisonment it was important too, for the English law would be tested against an international human rights convention that explicitly embodied human rights standards applicable to punishment.163 Nevertheless, there were constraints: although the European Court of Human Rights had been established in 1959 and English litigants had been allowed to approach it directly since 1966,164 its jurisprudence had developed slowly. In measuring national practices against the standards of the European Convention it generally allowed States a wide margin of appreciation. Nowhere was this truer than in the area of penal sanctions.165 The prohibition against torture or inhuman or degrading

160 161 162

163 164 165

abridged 5th edition by Lord Woolf, Jeffrey Jowell and Andrew Le Seuer), London: Sweet and Maxwell, 1999, ch 12. See R v Parole Board and Home Secretary, Exparte Gunnel [1985] Criminal Law Review 105. R v Parole Board, Ex pane Bradley [1991] 1 WLR 134. (n. 75). A case involving a mandatory life sentence for murder. Until November 1998 the evaluation proceeded in two stages. The European Commission on Human Rights considered the admissibility of an application and decided whether a matter should go to the European Court of Human Rights. Since November 1998 this function has been taken over by the Court, which has been substantially reorganised: Alastair Mowbray, Cases and Materials on the European Convention on Human Rights, London: Butterworths, 2001, 17 and 29. See Chapter 1. In 1966 the United Kingdom made an optional declaration under art. 25 of the European Convention allowing for petitions to be brought against it: Mowbray (n. 162) 17. P. van Dijk and G.H.J. van Hoof, Theory and Practice of the EHCHR, 3rd ed, The Hague: Kluwer, 1998, 312. 113

Chapter 3 punishments in article 3 of the European Convention had been used to address abuses in enforcement practices in prison and elsewhere rather than the imposition of sentences in terms of penalties prescribed by national parliaments. For this reason perhaps, initial complaints addressed release procedures rather than the substance of life sentences. Moreover, in raising cases involving the release of lifers, litigants were able to rely on a powerful and recent precedent in a closely related field. In X v United Kingdom166 the European Court of Human Rights held that article 5(4) of the European Convention, which provides that anyone who is detained has the right to have a court decide on the lawfulness of his detention, entitled a mental patient to have his suitability for discharge from a restriction order determined by a court-like body and not by the Home Secretary. The direct result was that when the Mental Health Act 1959 was replaced by the Mental Health Act 1983, the jurisdiction of the Mental Health Review Tribunal, an independent court-like body, was extended to enable it to take binding decisions on the discharge of restricted patients.167 In two cases, both involving the protection of prisoners serving discretionary life sentences against the arbitrary detention prohibited by article 5 of the European Convention, the European Court of Human Rights eventually also found in favour of the prisoner concerned. The first of these, Weeks v United Kingdom,m concerned a prisoner who had been sentenced to life imprisonment for robbery while only 17 years of age. The actual robbery was not particularly serious and the trial court in exercising its discretion to impose the life sentence emphasised that the sentence was being imposed only because Weeks presented a danger to society. Weeks served the tariff portion of his life sentence and was duly released. After his release he committed numerous further offences and was redetained in terms of the original life sentence and released again several times. Weeks approached the Court on the basis that two different paragraphs of article 5 of the European Convention, which deals with arbitrary detention, had been infringed. First, he argued that his redetention had infringed article 5(1), which specifies that detention is only allowed following conviction by a competent court. The Court held by a large majority of 16 votes to one that his redetention was lawful as it followed directly from his lawful conviction and sentence by a competent court. The European Court of Human Rights made much of the fact that in Weeks' case the life sentence was not being imposed primarily as a punishment but for social protection and the rehabilitation of the offender. The trial court, following earlier English sentencing practice in discretionary life cases, had even suggested that a life sentence might have been a mercy to Weeks as he could be

166 167

168

(1982)4EHRR252. Genevra Richardson, Law Process and Custody: Prisoners and Patients, London: Weidenfeld and Nicolson, 1993, 283-288. In 2001 the Court of Appeal ruled that s. 73 of the Mental Health Act 1983 that placed the burden of proof on a restricted patient to demonstrate that he should no longer be detained was incompatible with the Human Rights Act 1998, as it infringed articles 5(1) and 5(4) of the European Convention on Human Rights: H v Mental Health Tribunal, North and East London Region [2001] EWCA CFV 415. See also section 5 below. (1988) 10EHRR293.

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England and Wales released earlier than if he were sentenced to a long fixed term. In an interesting aside the Court commented: "Having regard to Mr. Weeks' age at the time and to the particular facts of the offence he committed, if it had not been for the specific reasons advanced for the sentence imposed, one could have serious doubts as to its compatibility with Article 3 of the Convention which prohibits, inter alia, inhuman punishment."169 Weeks himself did not raise the possibility of such incompatibility, but it is an indication that the Court took the tariff term and the potential reduction of the time the offender might spend in prison as an indication that life sentences of this kind were not as onerous as they might otherwise be. Indeed, Judge De Meyer, who wrote the only dissent on the applicability of article 5(1), argued that, as in this case the original intention was only to detain Weeks for a short period, extensive periods of redetention could not be justified without meeting the requirements of article 5(1), for there was not sufficient connection any more with the original indeterminate sentence. Weeks also argued that article 5(4), which guarantees the right to have a court decide on the lawfulness of detention, had been infringed. The European Court of Human Rights noted that, once the tariff period had passed, Weeks' suitability for further detention had to be reassessed by a court-like body. The Parole Board did not meet this requirement, both because, except in the case of deciding to recall a prisoner, it could not take final decisions and also because the proceedings before it did not give the offender a right of access to all the materials and therefore did not meet the standards of judicial proceedings. Accordingly, a majority of the Court found in Weeks' favour on this point. Perhaps because of the unusual facts of the Weeks case, the British Government did not respond to the judgment of the European Court of Human Rights by changing its formal procedures for the release of lifers. In late 1990 the European Court of Human Rights underlined its commitment to procedural fairness in the release of lifers in the case of Thynne, Wilson and Gunnell v United Kingdom.™ All three of these prisoners were adults who had been convicted of serious offences and whose dangerousness due to various forms of mental instability was clear to the courts that exercised their discretion to sentence them to life imprisonment. In the cases of Wilson and Gunnell the applicants claimed that the procedure for their recall to prison, and in the case of Thynne the procedure for release, did not meet the standards set by article 5(4) of the European Convention. In all three cases the matter concerned prisoners who had served the tariff period of their sentences and who were being detained further because of the risks they allegedly posed to society. The Court had no difficulty in treating all three cases in the same way. It reiterated its finding in Weeks that the discretionary life sentence in England had developed to the point where a punitive element and a protective element could be clearly recognised. Once the punitive element (the tariff period) had expired new issues arose about dangerousness and risk and these needed to be evaluated afresh by a court in At 311 para 47. (1991) 13EHRR666. 115

Chapter 3 order to establish the lawfulness of the continued detention of the offenders. Further reviews would also be required from time to time. The Court reiterated that neither the Parole Board, as it was then constituted and operated, nor the system of judicial review of administrative discretion, met the requirement set by article 5(4) of the European Convention for a "court" to determine the lawfulness of detaining a lifer at the second, preventive detention stage of a life sentence. Faced with this further judgment the British Government had to change its system of considering the release of lifers. It was pressed to use the opportunity presented by the passage of the Criminal Justice Act 1991 through Parliament to add a further provision that was designed to ensure that lifers facing discretionary life sentences had their release considered by a court-like body. Parliament duly adopted a provision171 that provided explicitly not only that the tariff part of the sentence would have to be announced in court but also that, once the tariff period was over, release would have to be considered by a specially constituted Discretionary Lifer Panel of the Parole Board. These panels would have to follow court-like procedures, which were to be fully prescribed by regulation in terms of the Act. Importantly, once the Parole Board, as represented by the panels, had decided on release, the State, as represented by the Home Secretary, would be compelled to carry out the decision. Formally, for discretionary lifers the due process requirements for release appeared to have been met. The shift in thinking as far as the release of these lifers was concerned was not limited to a Government reluctantly nudged by the European Court of Human Rights. In the case R v Parole Board, Ex parte Wilson,172 decided after the Criminal Justice Act 1991 had been passed but before the new discretionary lifer panels had been established, the Court of Appeal demonstrated that it too had been persuaded of the need for increased due process in release decisions. It distinguished its earlier decision in Payne v Lord Harris of Greenwich and held that natural justice now required that a discretionary lifer should have access to information before the Parole Board on which a decision could be based, even before this was required by statute. In coming to this conclusion the Court itself noted that there had been a general shift in attitudes to prisoners' rights and noted with approval a list of such changes identified by Wilson's counsel. These were: (1) that the Mental Health Act 1983 required the disclosure of medical reports in cases where the further detention of a patient was considered; (2) the 1988 review of parole by Lord Carlisle had recommended the advantages of giving reasons and making all documentation available to prisoners save in exceptional cases; (3) the 1990 Select Committee of the House of Lords on Murder and Life Imprisonment had made a similar recommendation; (4) in 1990 the Government in a White Paper had accepted in principle the recommendations of the Carlisle Committee on parole; (5) the decision of the European Court of Human Rights in Thynne, Wilson and Gunnell v United Kingdom; and (6) the acceptance by the UK Government of this decision and the subsequent amendment of legislation. Section 34 as amended by s. 28 of the Crime (Sentences) Act 1997 and by schedule 8 of the Crime and Disorder Act 1998. [1992] 1 QB740(CA). 116

England and Wales The legal victory for formal due process in release procedures does not mean that all aspects of the release of prisoners serving discretionary sentences, or of their return to prison for breach of licence, are just. A recent empirical study173 of the operation of the Discretionary Lifer Panels has concluded that on a narrow view of decision-making about release the Panel process has been fair. However, it found that binding legal powers were limited too closely to the decisions specifically about release. For example, the Panel often recommended that a prisoner whose application was turned down be held in an open prison pending a further evaluation. Yet the Home Secretary and Prison Service were not bound by such recommendations. If they did not co-operate they could effectively veto a prisoner's release, as in practice the Panel believed that it was too risky to order the release of a lifer who had not had a trial period in an open prison. ii) Mandatory life sentences The decision in Wilson that summarised the legal developments in the release process was cast in terms of the rights of all prisoners. It upheld the decision in Bradley114 in the previous year that found that the release process was essentially similar "because it is quite clear that the [parole] board and the Home Secretary apply the same approach both to the mandatory and discretionary life prisoners, namely, that, after they have served the tariff period, as decided by the Home Secretary after consultation and advice from the judiciary, the sole question that justifies detention in either case is risk to the public" }15 Nevertheless, on the facts Wilson dealt only with the release of discretionary lifers and by this time a clear distinction between the release procedures for mandatory and discretionary lifers had already emerged. What was its basis? The first indication of a significant difference in approach to the release of mandatory lifers emerged in 1983 in a speech of the then Home Secretary, Leon Brittan, at a congress of the Conservative Party. In this speech and also in a formal statement to the House of Commons, which followed later in the same year,176 Mr Brittan dwelt on public concern about violent crime. From this he drew conclusions on how persons convicted of murder should be released. (Of persons sentenced to life imprisonment for crimes other than murder, he said nothing at all.) The Home Secretary announced that he would in future be using his discretionary powers "so that murders of police, or prison officers, terrorist murders, sexual or sadistic murders of children or murders by firearm in the course of robbery can normally expect to serve at least 20 years in custody; and there will be cases where the Nicola Padfield and Alison Liebling, An Exploration of Decision-making at Discretionary Lifer Panels (Home Office Research Study 213), London: Home Office Research, Development and Statistics Directorate, 2000. R. v Parole Board, Exparte Bradley [1991] 1 WLR 134. At 149D (emphasis added). Parliamentary Debates, House of Commons, Vol. 49 (6th series), cols. 505-507 WA, 30 November 1983. 117

Chapter 3 gravity of the offence requires a still longer period. Other murders, outside these categories, may merit no less punishment to mark the seriousness of the offence".177 The Home Secretary explained that he would continue to look to the judiciary for advice on the time to be served "to satisfy the requirements of retribution and deterrence and to the Parole Board for advice on risk".178 The procedure was to be streamlined so that the procedures for deciding on risk would begin about three years before the expiry of the period necessary to meet the requirements of retribution and deterrence. The advantage of the clarified procedure would be, the Home Secretary noted, that the consideration of risk by the Parole Board, "which always has been, and will continue to be, the pre-eminent factor determining release," would be separated from the consideration of requirements of retribution and deterrence.179 However, the Home Secretary made it clear that the ultimate decision whether to release remained with him. A number of issues arise from this initial ministerial statement. Was the Home Secretary entitled to adopt such a policy? Was it fair to lifers who were already in open prisons to delay having their cases considered by the Parole Board, as this would inevitably result in their release being delayed? Two such prisoners challenged the Home Secretary in the courts. Their case, Findlay v Secretary of State for the Home Department, 180 which eventually reached the House of Lords in 1984, was the first in which the English court of final instance had to consider the question of the release of lifers directly. In the event the applicants were given short shrift. The House of Lords held unanimously that the Home Secretary could in law make a policy of this kind as long as he did not fetter his own discretion entirely. It also found that the prisoners did not have a legitimate expectation of release but only to have their cases considered in terms of the policy adopted by the Home Secretary. The wider issue was whether it was justifiable in principle in cases of mandatory life sentences for murder for the Minister to claim the right both to decide when to refer a matter to the Parole Board and to make the final decision on release. The initial statement did not attempt to explain why the Minister should take decisions on mandatory life sentences rather than leave it to the courts whose expertise is precisely in determining sentences in terms of retribution and deterrence and to the experts on risk in the Parole Board. Lord Scarman who in Findlay's case gave the unanimous judgment of the House of Lords articulated one possible justification: "[N]either the [parole] board nor the judiciary can be as close, or as sensitive, to public opinion as the minister responsible to Parliament and to the electorate. He has to judge the public acceptability of early release and to determine the policies needed to maintain public confidence in the system of criminal justice. That must be why Parliament saw as necessary the duality of the parole system: without the 177 178 179 180

Ibid., col. 506. Ibid. Ibid., col. 507. [1984] 3 All ER 801.

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England and Wales advice and recommendation of a body capable of assessing the risk of early release the Secretary of State was not to act; but, having received such advice and recommendation, he was to authorise early release only if he himself was satisfied that it was in the public interest that he should."181 But should a judgment of the public interest by an elected politician rather than an impartial tribunal have the final say in determining the liberty of an individual, even one sentenced to life imprisonment? It was strongly argued by the Select Committee of the House of Lords on Murder and Life Imprisonment that the correct policy was for the minister to withdraw completely.182 When the 1991 Criminal Justice Bill came to be debated in the House of Lords the point was forcefully made again. Consequential amendments, which were designed to make the release procedures for mandatory lifers the same as for the discretionary life sentences, thus ensuring the dominance of the courts and parole board and the exclusion of the ministerial discretion, were put to Government proposals that in their final form dealt only with discretionary lifers.183 The amendments of the House of Lords were ultimately rejected. The explanation given on behalf of the Government by Mrs Angela Rumbold, a junior Minister of State in the Home Office, in the debate about the 1991 Bill was that: "The nature of the mandatory sentence is different. The element of risk is not the decisive factor in handing down a life sentence. According to the judicial process, the offender has committed a crime of such gravity that he forfeits his liberty to the State for the rest of his days. If necessary, he can be detained for life without the necessity for subsequent judicial intervention. The presumption is, therefore, that the offender should remain in custody until and unless the Home Secretary concludes that the public interest would be better served by the prisoner's release than by his continued detention. In exercising his continued discretion in that respect, the Home Secretary must take into account, not just the question of risk, but of how society as a whole would view the prisoner's release at that juncture."184 This is a most revealing statement about the core views of the British Government on the full implications of the mandatory sentence of life imprisonment, as it clarifies something that was ambiguous in the earlier statement. The 1983 statement could be read as saying that the sentence consisted of a penal element of a tariff period proportional to the degree of retribution and deterrence that the crime demanded and a further period. (For the sake of clarity I leave aside for a moment the concern one may have about combining retribution and deterrence in this way.) After the tariff period had been served the length of the further period was to be determined on the basis of risk. The Home Secretary could intervene and refuse to accept the judgement of the courts on the tariff or the Parole Board on risk, but he would be applying the same criteria. Whether the Home 181 182 183 184

At826e-f. Select Committee on Murder and Life Imprisonment (n. 91) 501-551, paras 202-209. Windlesham (n. 59) Vol. 2, 435-450. Parliamentary Debates House of Commons, Vol. 195 (6th series), col. 310, 16 July 1991, (emphasis added). 119

Chapter 3 Secretary should be able to overrule what is effectively the sentencing decision of a court on the tariff or the considered expert opinion of the Parole Board on risk is an important question. There are powerful reasons of constitutional probity for arguing that the Home Secretary should not act as a combined 'super court' and 'super expert', but at least he would not be adding a new test at a late stage. The 1991 position, however, allowed the Home Secretary to introduce the further element of "how society as a whole would view the prisoner's release at that juncture". A life sentence of this kind meant something more than a sentence justified by the conventional arguments for punishment implicit in the previous stage. Would this new justification survive a concerted challenge in the courts? Two major challenges were mounted in the early 1990s. In R v Secretary of the State for the Home Department, Ex parte Doody 185 the House of Lords was asked to rule on the cases of a number of prisoners who had asked the courts to order that the Minister should not be able to extend the tariff period suggested by the trial judge and Lord Chief Justice as well as on a number of procedural guarantees. Lord Mustill, who gave the unanimous judgment of the House, analysed the history of the procedures governing the release of lifers in England. His judgment included a devastating critique of the 1983 and 1991 statements. Lord Mustill's conclusion was that "in contrast with the position as regards discretionary life sentences, the theory and the practice for convicted murderers are out of tune".186 He explained: "The theory - and it is the only theory which can justify the retention of the mandatory life sentence - was restated by Mrs. Rumbold less than two years ago. It posits that murder is an offence so grave that the proper tariff sentence is invariably detention for life, although as a measure of leniency it may be mitigated by release on licence. Yet the practice established by Mr. Brittan in 1983 and still in force founds on the proposition that there is concealed within the life term a fixed period of years, apt to reflect not only the requirements of deterrence, but also the moral quality of the individual act ('retribution'). These two philosophies of sentencing are inconsistent. Either may be defensible, but they cannot both be applied at the , 5?10/ 187 same time. Lord Mustill went on to say that, notwithstanding the logic, as the procedures laid down by Mr. Brittan in 1983 were still being followed, lifers could still rely on them. It was, noted Lord Mustill, for Parliament to clear up the confusion. Nevertheless, (and in this respect Lord Mustill's judgment moved beyond that of Lord Scarman in Findlay's case a decade earlier) following the 1983 Brittan approach did not mean that the prisoners were entirely at the mercy of the Home Secretary. It did not follow, however, that prisoners could insist that the Home Secretary adopt the views of the judges on the tariff. Lord Mustill emphasised that Parliament had not conferred the role of setting the tariff on 185 186 187

[1994] 1 AC531(HL) At 556B. A1556C-D.

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England and Wales the judges, and he went on to justify the role of the Home Secretary in setting the period before which the Parole Board could advise on release on a wider basis, explaining that "the Secretary of State is compelled, or at least entitled, to have regard to broader considerations of a public character than those which apply to an ordinary sentencing function".188 The fact that the Home Secretary had chosen to divide the process into two consultative stages did not mean that the discretion at the first stage had been delivered entirely into the hands of the judges. It did follow from the Brittan approach, Lord Mustill explained, that prisoners were entitled to certain procedural safeguards in the process adopted by the Home Secretary. These included being afforded the opportunity by the Home Secretary to make written representations as to the period of detention before the first review. In order to be able to make these representations the prisoner should be told what the period was that the judges had recommended and anything else they may have said that would influence the thinking of the Home Secretary on the initial period of detention. Where the Secretary differed from the judges and set a longer period he should also give the prisoner his reasons for doing so. Moreover, although it was not strictly necessary to do so, Lord Mustill expressly held that the continued momentum in administrative law towards openness meant that the earlier decision in Payne v Lord Harris of Greenwich1^ had to be overruled. Prisoners could have access to the reasons for the advice of the Parole Board as well.190 The elegant judgment in Doody embodies a strange compromise. On the one hand, it recognises the weaknesses in the system of release announced by the Government. It notes that the only coherent justification for a life sentence would leave offenders at the mercy of authorities without even a procedure to ensure that the sentence that they served was proportionate to the crime that they had committed, or, if not, at least justified on grounds of additional risk. On the other hand, it upholds a procedure which does not justify the sentence at all but which still loosely relates it to the offence. This looseness is made manifest by allowing the Government to take into account "broader considerations", which could not feature in an ordinary sentence and which might well allow prisoners to serve a term longer than what would be justified either by the offence or by the risk they pose. Within the loose framework the judgment attempts nevertheless to protect the prisoner against the worst excesses of the discretion granted to the Government by setting up various procedural safeguards, which relate to the setting of the period after which their sentences would have to be considered by the Parole Board and the Home Secretary on the grounds of risk. The compromise in the decision in Doody was not interpreted by the Government as seriously limiting its discretion in the release of lifers. In a formal statement following the Doody judgment the Home Secretary, Michael Howard, announced that the Government

188

189 190

At559B. (n. 75). At 566C.

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Chapter 3 would introduce the changes of procedure required by the House of Lords.191 To this extent it was clear that it was continuing with the policies set out by Brittan, on an interpretation upon which the House of Lords had based these procedural requirements. However, it reiterated that it would continue with the Rumbold policy as well. It would take factors other than those of offence-based retribution and deterrence and of risk into account when deciding on the final release date. The Home Secretary explained that he would "consider not only, (a) whether the period served by the prisoner is adequate to satisfy the requirements of retribution and deterrence and, (b) whether it is safe to release the prisoner, but also (c) the public acceptability of early release. This means that I will only exercise my discretion to release if I am satisfied that to do so will not threaten the maintenance of public confidence in the system of criminal justice."192 This was clearly the view of a Government that did not regard itself bound by the normal doctrines of punishment but saw the lifer as being at its mercy. In one respect Howard's statement went even further than those of his predecessors, for he explicitly claimed for himself the power to increase the tariff period that he had set if prompted by changes in the view of what retribution and deterrence required.193 It may be argued that the decision of the House of Lords in Doody would have been different if the constitutional powers of the House of Lords had not been so limited. Would they have been able to impose a release procedure, which ensured that a mandatory lifer too would be detained for no longer than what was required by the offence in respect of retribution and deterrence and by the offender in terms of risk? And would it have been able to ensure that their imposed release procedures met all the due process standards that had been developed for discretionary lifers? It seemed as if such an initiative might come from the European Court of Human Rights, which was of course not bound by the same constitutional constraints as the House of Lords. Shortly after the decision in Doody the question of appropriate procedures for considering the release of mandatory lifers reached the European Court of Human Rights in the case of Wynne v United Kingdom.194 Wynne's case was unusual in that he had been sentenced to mandatory life imprisonment for murder but had subsequently been released on parole. He had then committed a further offence for which a discretionary life sentence was imposed. As an additional result his parole was cancelled. Therefore he was again in prison serving a mandatory life sentence as well. The European Court of Human Rights, however, treated the matter as if he were serving a mandatory life sentence. The crisp question was whether article 5(4) of the European Convention, which requires the lawfulness of detention to be determined by a court, 191 192 193 194

Parliamentary Debates, House of Commons, Vol. 229 (6th series), cols. 861-4 WA, 27 July 1993. Ibid., col. 864. Ibid. (1995)19EHRR333.

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England and Wales could be used to challenge the power of the Home Secretary to decide on Wynne's continued detention. In a unanimous and relatively brief judgment the Court denied that article 5(4) was applicable and dismissed the application. In coming to its decision the court relied heavily on the descriptions of the operation of the mandatory life sentence in England given in the 1991 and 1993 ministerial statements quoted above and on the apparent acceptance in Doody's case of the contradictory theories for life imprisonment. The basis of its decision was that "the mandatory life sentence belongs to a different category from the discretionary sentence in the sense that it is imposed automatically as the punishment for the offence of murder irrespective of considerations pertaining to the dangerousness of the offender. That mandatory life prisoners do not actually spend the rest of their lives in prison and that a notional tariff period is also established in such cases ... does not alter the essential distinction between the two types of life sentence."195 From this basis the European Court of Human Rights reasoned that the lawfulness of the offender's detention was established at the time of sentence and that nothing in the nature of the sentence meant that another court would have to consider the lawfulness of the continued detention of the prisoner. The European Court of Human Rights does not seem to have grasped that the complicated procedures that existed to allow for early release were an integral part of the sentence, as they were deliberately designed to avoid a sentence grossly disproportionate to the crime. This is ironic, given that the European Court of Human Rights itself noted that a mandatory life sentence could be imposed for a "mercy killing".196 Moreover, in the earlier discretionary life case of Weeks the Court had recognised that the life sentence imposed by the court in its discretion might have been disproportionate to the crime. In Wynne the issue of whether a life sentence not subject to re-evaluation by a court might not be grossly disproportionate and therefore an inhuman or degrading punishment in terms of article 3 of the European Convention, was not dealt with at all. It is a question to which we will return below. Once both the House of Lords in Doody and the European Court of Human Rights in Wynne had indicated that a court need not have the last word on the release of mandatory lifers, it seemed that there was little constraint on the Home Secretary's powers in this regard, other than the procedural steps required in Doody. In the event the House of Lords had to deal with two further attempts by prisoners serving mandatory life sentences to have these powers limited. In Pierson191 the House of Lords was asked to consider the power that the Home Secretary had claimed since his statement in 1993 that he could increase a tariff period, which he or one of his predecessors had set for a prisoner serving a mandatory life sentence. The House of Lords found in favour of Pierson, by a majority of three to two. At 347 para 35. At 346 para 32. R v Secretary of State for the Home Department, Exparte Pierson [1998] AC 539 (HL) 123

Chapter 3 Of the majority, however, only two Law Lords held explicitly that the Home Secretary had no power to increase a previously set tariff. The third member of the majority did not rule on the question as he justified his decision that in this instance amending the tariff would amount to claiming a power that the Home Secretary did not have in terms of the policy declared earlier to be applicable to this case. Mr Jack Straw, the Home Secretary in the newly appointed Labour Government responded to the decision with a policy statement which claimed that the power of the Home Secretary to increase the tariff had not been overturned and that he proposed to continue to use it if necessary.198 As a precedent Pierson's case is of limited value but it does show the extent to which the courts continue to grapple with complexities of the exercise of discretion by the Home Secretary in making decisions about mandatory sentences. Noteworthy too is the affirmation by Lord Steyn that "in fixing the tariff in an individual case the Home Secretary is making a decision about the punishment of the convicted man" and that therefore he is under a duty to act under the same constraints as a judge exercising the sentencing function.'" In Hindley200 the issue was whether it was lawful for the Home Secretary to impose a whole life tariff. In this instance the House of Lords held unanimously that it was acceptable for the Home Secretary to set such a tariff for a particularly horrific murder for purposes of punishment alone. The murders committed by Myra Hindley are regarded as almost uniquely horrible201 and the Court had little difficulty in holding that a sentence of life imprisonment meant that persons might be imprisoned until they die. However, the modifications implicit in the safeguards of the release process were not quite swept aside. Although at some stage the Home Secretary had mooted a tariff period of 30 years, it had not been communicated to Hindley. The Court was therefore able to find on the facts that the power of the Home Secretary to increase the tariff period did not arise. In the view of Lord Steyn, who gave the leading judgment in Hindley, (and who had held in Pierson that the Home Secretary did not have this power), the question still remained open. Moreover, even with a whole life tariff the Court needed to be reassured that the Home Secretary would play an ameliorative role. In this regard the Court was satisfied by an undertaking from counsel that the Home Secretary had indicated that he would be prepared to review any whole life tariff decision from time to time, even if there had been no exceptional progress by the prisoner. Hi) Juveniles In the 1990s there was a somewhat unexpected challenge to the authority of the Home Secretary to control the release of persons convicted of murder when his powers in 198 199

200 201

Parliamentary Debates, House of Commons, Vol. 300 (6th series), cols. 419-420 WA, 10 November 1992. (n. 16) at 585E. Lord Steyn referred explicitly to the similar decision of the House of Lords in R v Secretary of State for the Home Department, ex pane Venables and Thompson [1998] AC 407 (HL) (discussed below) and commented: "This point is therefore settled by the binding authority of a decision of the House." (Ibid.). (n. 16). For interesting background to the iconic status of this case see John Upton, "Crimewatch UK" London Review of Books, 21 September 2000, 33-34.

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England and Wales respect of juveniles serving indeterminate terms for murder were disputed. Legislation providing for indeterminate detention of juveniles convicted of murder had long been on the statute book. These provisions were initially introduced in 1908 to ensure that children were not subject to the death penalty. The Children Act 1908 provided for such children to be detained "during Her Majesty's pleasure." The age of the children concerned was set at those under 18 years by s. 53(1) of the Children and Young Persons Act 1933. Its provisions were re-enacted in s. 1(5) of the Murder (Abolition of Death Penalty) Act 1965, which provided: "A person convicted of an offence who appears to the court to have been under the age of 18 years at the time when the offence was committed shall not, if he is convicted of murder, be sentenced to imprisonment for life, nor shall sentence of death be pronounced on or recorded against any such person: but in lieu thereof the court shall ... sentence him to be detained during Her Majesty's pleasure, and if so sentenced he shall be liable to be detained in such place and under such conditions as the Secretary of State may direct." Such a sentence was mandatory and when the procedures for the release of mandatory and discretionary lifers began to diverge the Government seems to have assumed that they could deal with the release of juveniles detained during Her Majesty's pleasure in the same way as adults serving mandatory life sentences for murder. Juveniles detained during Her Majesty's pleasure were not included in the amended provisions made for the release of discretionary lifers in the Criminal Justice Act 1991. And in 1993 the statement of the Home Secretary on his policy on the release of mandatory lifers concluded with the proposition that everything he had said in relation to life sentence prisoners applied equally to persons detained at Her Majesty's pleasure. However, this symmetry was undermined by the European Court of Human Rights in particular. In Hussein v the United Kingdom202 the European Court of Human Rights only considered the position of a convicted juvenile detained during Her Majesty's pleasure after the punitive period had expired. It held that at this stage of the sentence further detention could only be justified in order to protect the public. Anything else, it noted in an echo of the view it had expressed in the Weeks case about post-tariff detention of a discretionary lifer, might give rise to questions under article 3 of the European Convention, that is, it might be disproportionately harsh and therefore inhuman and degrading. It followed that this phase should be dealt with like that of a discretionary lifer. It meant that the Parole Board should have the independence of a court, as prescribed in article 5(4) of the European Convention, to make binding decisions on the release after having followed a procedure that met the standards of due process. The existing procedures governing the release of mandatory lifers, to which Hussein had been subject, did not do so. Hussein therefore succeeded in showing that his rights in terms of article 5(4) of the European Convention had been infringed. The Government responded in 1997 by amending the law to empower the Parole Board to take binding decisions on (1996)22EHRR 1. 125

Chapter 3 release.203 This meant that the discretion of the Home Secretary was excluded in the same way as it had been for the release of prisoners serving discretionary life sentences. Further developments of the law followed from the sensational case in which two young boys, Thompson and Venables, both ten and a half years old at the time of the offence, were convicted of murdering a two-year old boy. They too were sentenced, mandatorally as required by law, to detention during Her Majesty's pleasure. In their case the primary dispute involved the punitive period to be served before release could be considered. As in the case of mandatory lifers, both the trial judge and the Lord Chief Justice made recommendations in this regard but it fell to the Home Secretary to make the final decision. The trial judge recommended eight years and the Lord Chief Justice ten. The Home Secretary fixed the punitive tariff period at 15 years and explained that he had had regard to the public concern about the case, including the petitions and letters that had been sent to him asking that the boys never be released. The House of Lords found that the Home Secretary had acted incorrectly in two respects.204 Firstly the Court held that in one important respect he was not entitled to adopt the policy in the case of juvenile offenders that he applied to adults. He could not limit his discretion to change the tariff only to circumstances where there were exceptional new insights into the offence or the state of mind of the offenders at the time they committed the crime. The treatment of juvenile offenders required that their tariff should be kept under constant review, lest their release should be considered at an earlier stage than the initial tariff laid down. Secondly the Court held that the Home Secretary, in fixing the tariff, was exercising what was in effect a sentencing function and that he had misdirected himself by taking into account the public petitions addressed to him and the clamour in the media. The Court set aside the punitive tariff period determined by the Home Secretary and ordered him to reconsider. Thompson and Venables then petitioned the European Court of Human Rights.205 When their case was heard two and a half years later the Home Secretary had not set a new tariff, although he still intended to do so. In the event the European Court of Human Rights found that both the trial and the sentence of Thompson and Venables infringed the European Convention in a number of respects. The Court held that the actions of the Home Secretary fell foul of article 6 of the European Convention, which requires that "in the determination ... of any criminal charge" there must be a "fair and public hearing within a reasonable time by an independent and impartial tribunal". Sentencing was regarded as part of the "determination of any criminal charge" and on the strength of the judgment of the House of Lords the European Court of Human Rights held that tariff setting was a sentencing exercise. As the Home Secretary was clearly not independent from the executive, the existing procedure violated article 6.206

203 204 205 206

Section 28 of the Crime (Sentences) Act 1997. R v Secretary of State for the Home Department, Exparte Venables and Thompson [1998] AC 407 (HL). V v United Kingdom (2000) 30 EHRR 121. At 184-187 paras 106-114.

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England and Wales The European Court of Human Rights also found that there had been a further violation of article 5(4), for in the period where no tariff had been set, there had been no binding sentence period. The offenders ought in terms of article 5(4) of the European Convention to have been able to appeal to a court to test the lawfulness of their detention but in practice they could not do so.207 Finally, a large minority of the Court (seven of the 17 members) held that article 3 of the European Convention had been violated because a life sentence imposed on such young offenders, in the way that it had been done was inhuman and degrading, inter alia because of the anguish that had been caused them by the uncertainty about when they would be released.208 The British Government was forced to react quickly to this decision. New legislation was passed to deal with future cases requiring judges to make orders determining tariffs for juveniles detained during Her Majesty's pleasure. As with discretionary lifers these tariffs are to be set in open court and are appealable.209 For all offenders sentenced prior to the legislation coming into operation, the Lord Chief Justice was asked by the Home Secretary to set the tariffs. On 27 July 2000 the Lord Chief Justice, Lord Woolf, issued a practice direction describing the principles and practice he proposed to follow.210 His point of departure was what he described as the existing approach used by judges in mandatory cases where recommendations are made by both the trial judge and the Lord Chief Justice to the Home Secretary. He revealed that a tariff of 14 years is used as a point of departure and the period is adjusted in the light of aggravating and mitigating circumstances, of which he listed examples. This is a somewhat surprising approach. Although age is one of the mitigating factors mentioned in the Practice Note, there is still no recognition that the juvenile needs to be treated substantively differently to adult murderers at the tariff setting stage. Nor does there appear to be any special discretion for the tariff to be adjusted before it has been fully served. The process set out in Lord Woolf s Practice Note has begun to take effect. In October 2000 he applied the principles he proposed and set a tariff for Thompson and Venables, which amounted to their being considered for immediate release.211 In this case the offenders had served a long period, so the tariff was not set solely on the basis of the crime but on their development while incarcerated. In practice therefore the wider range of factors that the House of Lords had expected the Home Secretary to consider were taken into account. The judicial decision and the public pronouncement of reasons212 also met the requirements of the European Court of Human Rights for the involvement of a court. 207 208 209 210 211

212

At 187-188 paras 115 to 122. At 201-206 but cf. the opinion of the majority at 182-184 paras 93-100. See s. 82 of the Powers of the Criminal Courts (Sentencing) Act 2000. Practice Note [2000] 4 All ER 831. Re Thompson and another (tariff recommendations) [2001] 1 All ER 737 (CA). The Parole Board duly recommended their release on 22 June 2001. Much public debate followed: The Times, 23 June 2001. Other tariffs set for young offenders were reviewed subsequently by the Court of Appeals. Notable is the decision in R v DD (2001) LTC 7/8/2001. Foreshadowed in the Practice Note [2000] 4 All ER 831. 127

Chapter 3 5. HUMAN RIGHTS FOR LIFERS AS THE WAY FORWARD? The drastic changes in the implementation of the law relating to the detention of juveniles during Her Majesty's pleasure has not concluded the process of using human rights standards in the courts to attack aspects of life imprisonment, thereby raising questions about the punishment itself. This process was given a significant boost when on 1 October 2000 the Human Rights Act came into force in England. The Act is an important constitutional instrument, for it incorporates the European Convention on Human Rights directly into English law. It instructs the courts to interpret legislation in a way that is compatible with European Convention rights.213 Where this cannot be done, they may strike down incompatible subordinate legislation.214 In the case of primary legislation the courts may issue a declaration of incompatibility in which case the Government may change the legislation by executive order. This last step is something of a compromise between giving the courts the power, which exists in many constitutional democracies, to strike down legislation that is incompatible with an entrenched Bill of Rights and a modified form of democratic sovereignty. With this exception, however, the position of the English courts to test existing laws and practices against first principles has become much more powerful. In applying the European Convention the courts must take into account the judgments of the European Court of Human Rights but they are not compelled to follow them, nor do the English courts have to allow the "margin of appreciation" which the European Court of Human Rights allows to the national states subject to the European Convention. In late 2000 the Court of Appeal applied the provisions of the Human Rights Act to life imprisonment for the first time when it reconsidered the interpretation of the provision that in exceptional circumstances an automatic sentence of life imprisonment did not have to be imposed. In the case of R v Offen215 the Lord Chief Justice, Lord Woolf, accepted that the narrow interpretation of exceptional circumstances that had hitherto been followed could result in the imposition of life sentences that would be disproportionate and arbitrary and thus in contravention of articles 3 and 5 that deal with the prohibition on inhuman and degrading punishment and with the arbitrary deprivation of liberty respectively. "It is easy", noted Lord Woolf, "to find examples of situations where two offences could be committed which were categorised as serious by the section, but where it would be wholly disproportionate to impose a life sentence to protect the public."216 213 214

215

216

Section 3 of the Human Rights Act 1998. The only example of this being done hitherto is in respect of the onus of proof placed on restricted patients to show that they should be released in terms of s. 73 of the Mental Health Act of 1983. See H v Mental Health Tribunal, North and East London Region (n. 167). For a wider discussion of the impact of the Human Rights Act see John Wadham "The Human Rights Act: sufficient protection?", (2001) 151 New Law Journal, 1411. [2001] 1WLR 253. More fully, R v Offen; R v McGilliard; R v McKeown; R v Okwuegbunam; R v S. A number of earlier cases were reconsidered in this judgment including R v Offen [2000] Criminal Law Review 306. [2001] 1 WLR at 276D para 95.

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England and Wales This was a major development. It meant that Lord Woolf rejected the argument put forward by the Crown that the prospect of early release for lifers removed the elements of arbitrariness and disproportionality of outcome from the life sentence. On the contrary, it implied recognition that a life sentence places a much heavier burden on prisoners than a determinate sentence and that this has to be justified, if it is not to fall foul of the relevant standards of the European Convention. In terms of the immediate question of how to deal with the interpretation of the legislation Lord Woolf avoided declaring the section in question incompatible with the European Convention and therefore with the Human Rights Act. Instead he declared that, as the intention of Parliament had been to protect the public from dangerous offenders, exceptional circumstances should be interpreted to include a consideration of whether the offender in fact posed a risk to the public. If this were found not to be the case, a court should find that exceptional circumstances existed, which would free it from the mandatory requirement of imposing a life sentence for the second serious offence. Lord Woolf went on to say that such an interpretation was not contrary to the precedent set by Kelly, the earlier leading case; nor was it contrary to the will of Parliament, as the courts faced with a second conviction for a serious offence of the stipulated kind would automatically impose a life sentence unless the accused was not a danger. No such obligation existed on them to consider a life sentence in the case of other offences for which life imprisonment was a verdict within its discretion. These qualifications were, however, somewhat disingenuous and served to downplay a direct clash with the legislature, for there was evidence too that the objective of the legislation was to limit judicial sentencing discretion. The conclusion on the meaning of exceptional circumstances in this context reached in Offen was contrary to that reached in Kelly. Moreover, the intention of Parliament was being thwarted, at least in part, by giving the judges a far greater discretion than Parliament had envisaged. One can criticise the judgment in other ways. It could be argued that Lord Woolf conceded too easily that as long as someone was found to be dangerous an indeterminate sentence would be in order. Further, he should have looked more closely at the additional common law requirement that the offences that triggered it should be sufficiently serious. It could also be argued that insufficient attention was paid to the difficult question of how courts determine whether an offender has reached the threshold of dangerousness that allows the imposition of a life sentence. The most important feature of the decision in Offen's case though, is the use made of articles 3 and 5 of the European Convention. One distinguished commentator has suggested that the Court would have adopted the interpretation it reached quite independently of the Human Rights Act simply by applying the traditional "mischief rule of statutory interpretation, which would indicate that the scope of the section should be limited by giving the concept of "exceptional circumstances" a wide interpretation.217 There must be some doubt about this, on the simple basis that the same court had not done so on a number of earlier occasions when it had interpreted the section without 217

David Thomas, "Commentary on R v Offen and other cases", (2001) 1 Criminal Law Review, 66-68. 129

Chapter 3 reference to the European Convention. The fact remains that the decision in Offen heralds the introduction, via consideration of the European Convention, of questions of proportionality and arbitrariness into the decision by a British court on whether life imprisonment should be imposed at all in a particular case. In this respect the decision is much bolder than the European Court of Human Rights had been in its analysis of the law on implementing life sentences. Unfortunately, thus far English courts have not been prepared to apply the logic of Offen or even the full implications of the decision of the European Court of Human Rights in V v United Kingdom to other areas of life imprisonment law.218 The most direct challenge has come in R v Lichniak and Pyrah219 in which it was argued directly that the mandatory life sentence for murder infringed articles 3 and 5 of the European Convention. This argument was presented on the basis that, although the two offenders had committed murder, there was no evidence that they were dangerous. A sentence longer than the tariff therefore was both disproportionate and arbitrary. The response of the Court of Appeal was, however, highly technical. It relied heavily on the fact that the European Court of Human Rights had not struck down the mandatory life sentence for murder in Wynne, notwithstanding that the question of incompatibility with article 3 had not been addressed directly in that case at all. Moreover, the Court of Appeal was still very deferential to Parliament. It distinguished Offen's case on the basis that Lord Woolf s finding was only that the true intention of Parliament was to deter dangerous offenders and not to limit the power of the judges to impose sentences that they, rather than the legislator, regarded as appropriate, even though Lord Woolf s analysis of the European Convention was based precisely on the wider argument that persons who are not dangerous should not be subject to automatic life sentences. Apart from its appeal to precedent, the key argument of the Court in Lichniak and Pyrah was that the policy of giving the Home Secretary the discretion after consultation to refer cases to the Parole Board for consideration and, if the Board approved it, of releasing offenders, was sufficient individualised consideration to ensure that the mandatory sentence for life imprisonment could not be labelled inhuman and degrading.220 This is an extraordinary conclusion, because, if the procedure served this function, it would of course be a further sentencing decision. One could then expect that it should meet the procedural standards that had been developed by a combination of the European and domestic courts and the legislature and that, since the early 1990s, had been applied to discretionary life decisions, both in the setting of a tariff that is proportionate to the offence and to any subsequent decisions relating to release of the offender on licence. That the existing procedure did not meet this standard had been confirmed yet again a few months earlier in February 2001 by the Divisional Court in Secretary of State for the 218 219 220

For a comprehensive overview of recent decisions, see Nicola Padfield, "Life sentences under the microscope", (2001) 6 Archibald News, 5 The Times, 16 May 2001. Ibid.

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England and Wales Home Department ex parte Anderson and Taylor,221 when that court held that it was still bound to accept the procedure that allowed the Home Secretary to increase the punitive period of the murder sentence. It did so, however, only because, as the majority of the judges explained explicitly, it believed that it was bound by earlier precedents such as Doody's case, which were of course decided before the Human Rights Act came into effect. The result of these latest decisions is that English law still relies on the release procedure to ensure that mandatory life sentences for murder are not so disproportionate that they infringe the prohibition on inhuman or degrading punishments. However, the procedure itself is still of a kind that does not meet the standards that courts in other circumstances have thought necessary to ensure that the outcome is not arbitrary222 and that the offender has recourse to a court about this key decision.223 The greater flaw of the decision of the Court of Appeal in Lichniak and Pyrah is that it does not recognise that when a mandatory life sentence is challenged directly it cannot have things both ways. It can reject that challenge if it can argue that it would not be disproportionate for all prisoners subject to the mandatory sentence to be detained until they die. The Court has not done so. It accepts that life sentences are being imposed on offenders for whom lifelong incarceration would be disproportionate. It cannot then leave unexamined the procedures by which steps are taken to ensure that they are released. At the very least, these procedures must themselves be of a kind that will ensure proportionality and the absence of arbitrariness. A two-stage procedure, fortified by the safeguards developed for discretionary lifers, might meet this standard in as much as arguably both stages meet the requirements for producing sentencing decisions that are not disproportionate or arbitrary. A more radical examination would reject even this alternative, for the second stage is dependent on a risk assessment and if at sentence one knows that the offender does not present a particular risk, the second stage procedure is unnecessary. A life sentence should therefore not be passed at all in such cases. This is precisely what Offen decided by saying that those who qualified for automatic life sentences should not be sentenced to life imprisonment unless they were dangerous. The logic of the case for mandatory sentences of life for murder to be dealt with in the same way in order to avoid disproportionality and arbitrariness appears to be inescapable. 6. CONCLUSION It is clear that key aspects of the law governing life imprisonment in England remain disputed. Given the large amount of litigation that there has been on various aspects of life imprisonment this clearly requires explanation. One explanation is that the English legal structure has not allowed life imprisonment as a form of punishment to be tested directly against first principles. Therefore the legal process has been compelled to focus 221 222 223

[2001] ECWHC ADMIN 181. The standards set by art. 5 of the European Convention on Human Rights. The standard set by art. 6 of the European Convention on Human Rights. 131

Chapter 3 largely on challenging aspects of its implementation. There may be some truth in this, in so far as the Human Rights Act now gives the English courts powers that they did not have before and the evolving jurisprudence on the European Convention on Human Rights offers the opportunity to present arguments, both before English courts and the European Court of Human Rights in Strasbourg, that could not have been put forward seriously before. The slow legal evolution is only part of the reason for the unresolved questions about life imprisonment in England. A further difficulty is that, although aspects of life imprisonment have featured prominently not only in litigation but in public debates about penal policy, the parameters of these debates have been limited. Experts in criminal law and penology have kept control of the agenda. Thus radical claims about abuse of discretion or the supposedly deleterious impact of life imprisonment on prisoners have not generally been given credence, even though expert committees proposed changes that would reduce their effects. Some of these limits appear to have been deliberately imposed by cautious reformers seeking to achieve more restricted objectives. In the battle against the mandatory life sentence for murder, for example, the argument about whether a sentence of life imprisonment was inherently acceptable (at all) has simply been avoided. In other instances the waters have been deliberately muddied.224 This has been increasingly true as professional politicians have become aware of the political advantages of not leaving penal policy to the experts and, particularly from the mid1980s onwards, have come to believe that harsh attitudes to high profile crime could win them public support. Thus, for example, politicians of all parties have continued to justify life sentences for all murderers on the basis of protecting the public, while admitting that one knows from the outset that some murderers are neither dangerous nor their specific crimes so heinous that they justify life-long incarceration. These inconsistent arguments have nothing to do with penal logic and, as the penal climate has grown harsher, everything to do with showing sensitivity to what they perceive to be the sentiments of the public. For the politicians the existing mechanisms for the release of prisoners serving mandatory life sentences for murder have served a useful dual function. On the one hand, they have allowed them to claim that those convicted of murder in fact only serve sentences proportionate to the actual crimes they committed. On the other hand, their own hands on the release mechanisms have allowed them to demonstrate on appropriate occasions that they could inject popular sentiment into a release decision by taking a harsher line than the courts would have. This explains why successive Home Secretaries have attempted to retain control over the release process. But, even where this power was lost to the courts, as has happened in the case of juveniles as a result of the Thompson

224

Cf. the conclusion of Lord Windlesham: "The explanation for the tortuous development of policy towards life sentence prisoners can be found in ministerial attitudes towards public opinion." (Responses to Crime, Vol. 2 (n. 59) 324).

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England and Wales and Venables matter, they could claim that, but for the interference from Europe, they would have done what the populace really wanted.225 A harsh critique of the limits of the debate about life imprisonment in England and of English life imprisonment practice should not obscure the importance of the long process that led to dividing the term served by a person sentenced to life imprisonment into a punitive tariff period set individually in each case, followed by a further period to be terminated when the offender ceases to pose a danger to the public. The recognition of this division, particularly in the case of discretionary life sentences, led directly to significant procedural protections for the offender at every step in the decision-making process. As importantly, it led to the unpacking of the mixed justifications for life sentences in this category. At the appropriate stage of the procedure questions that must be answered in a reasoned way can now be asked about the seriousness of the crime and about whether the offender is in fact so dangerous that he presents a risk of an unacceptable kind and degree to the public. General difficulties in making these judgements, in particular the prediction of dangerousness, have to be faced and are subject to separate scrutiny in a way that would not happen if the different elements of the sentence were lumped together. Perhaps most importantly, the bifurcation of the discretionary life sentence has meant that for no crime except murder can a life sentence be imposed merely because of the seriousness of the offence. It is important to emphasise also that the courts worked out the details of these reforms at a time when the political climate had already changed to one supportive of harsher incapacitatory punishments in general. Although the courts had some interest in limiting official discretion and increasing their own powers to determine outcomes, there have been undoubted advances in meeting standards of legality. That these have been achieved indicates at least a degree of autonomy on the part of the courts. It allows one to remain optimistic about the possibility of further reforms, notwithstanding indications that the Human Rights Act will be interpreted cautiously. There is no real danger that these gains will be reversed. On the contrary, careful empirical research, encouraged or at least tolerated by Government, that reveals further procedural shortcomings and litigation supported by civil liberties organisations, is likely to see the ambit of administrative justice for lifers being increased gradually. A cynic might say that the effect of the developments in respect of discretionary life sentence has been to dissolve it into a determinate sentence followed by a period of preventive detention. Such a sentence, it could be argued, has nothing in common, except for the name, with the mandatory life imprisonment for murder. Such cynicism would be overstated. It is true that contrasting claims, that a mandatory life sentence for murder places the offender in the hands of the State from which he may be released only as a matter of grace by the State, have been recognised by the courts. Nevertheless, life imprisonment for murder has continued to be administered as a two-stage term that bears a more than passing resemblance to the discretionary life sentence. And the English 225

See the debates in House of Commons about this matter: Parliamentary Debates, House of Commons, Vol. 346 (6th series), cols. 21-24, 13 March 2000. 133

Chapter 3 courts have granted mandatory lifers some procedural rights in their release process too: in fact they are procedurally in a stronger position than discretionary lifers were initially. Both the name and the similar structure of the sentence have kept alive the idea that in spite of the different reasons for which life terms may be imposed all sentences of life imprisonment have elements in common. These commonalties have been underlined by the recent developments surrounding the administration of what are effectively mandatory life sentences for murder imposed on juveniles. That these sentences now have to be dealt with administratively as if they were discretionary life sentences underlines the similarities between life sentences of all kinds. It also raises questions about the differences that still exist, both in justification for imposing the penalty and in the procedure for implementing it, between a mandatory life sentence for murder for adults and the life sentences imposed for all other crimes and all other types of offenders. In the final chapter further consideration will be given to these questions.

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CHAPTER 4

GERMANY

1. THE CURRENT POSITION In the modern Federal Republic of Germany,1 the sentence of life imprisonment is mandatory for murder2 and genocide3 and may be imposed for a number of other crimes.4 In most recent years, the number of life sentences for crimes other than murder has been so low as to make it almost negligible. In 1999 96 persons were sentenced to life imprisonment in the states of the old West Germany and in Berlin, of whom 83 were sentenced to life imprisonment for murder and the remainder for other offences all involving some form of homicide or attempted homicide. As Table 7 shows these figures have been relatively stable for a large number of years, although showing some increase recently. It also demonstrates that in modern times life sentences for crimes other than

The historical perspective in this chapter is provided primarily by focusing on the West German experience. Penal statistics for the united Federal Republic of Germany still use primarily the former West German States as a basis for comparative calculation. The history of life imprisonment in the German Democratic Republic (East Germany) differs significantly from that in the West, not least because the death penalty was only abolished in 1987: Cf. Christine Weis, "German Democratic Republic" in Dirk van Zyl Smit and Frieder Dunkel (eds.), Imprisonment Today and Tomorrow International Perspectives on Prisoners' Rights and Prison Conditions, 1st ed., Deventer: Kluwer, 1991, 279. The history of the actual implementation of life imprisonment in the former German Democratic Republic remains sketchy: See Jorg Arnold, "Reflexionen uber die lebenslange Freiheitsstrafe in der ehemaligen DDR" in Fraktion Bundis 90/Griine (AL)AJFV (eds.), Lebendig Begraben Lebenslange Freiheitsstrafe und Re-Sozialiserung: Ein Dauerwiderspruch, Berlin: Fraktion Bundis 90/Griine (AL)/UFV, 1991, 99. §211 of the Penal Code. § 220a(l)l of the Penal Code. See the following provisions of the Penal Code: § 80 Preparation for an aggressive war; § 94 Particularly serious treason; § 100 Particularly serious endangerment of peaceful relations; § 212 Particularly serious manslaughter; § 220a Less serious forms of genocide that do not include homicide; § 229 Fatal poisoning; § 239a Kidnapping and extortion with fatal consequences; § 239b Hostage-taking with fatal consequences; § 251 Robbery resulting in a fatality; § 307 Particularly serious arson; § 310b Particularly serious incidents of causing a nuclear explosion; § 31 la Particularly serious abuse of radiation; § 312 Causing a life threatening flood resulting in a fatality; § 316a Particularly serious motor vehicle hijacking; § 316c Aircraft hijacking with fatal consequences; § 319 Community poisoning with fatal consequences. To this long list were added in 1998: § 176b Sexual abuse of children with fatal consequences; § 178 Sexual coercion with fatal consequences; § 179 Sexual abuse of a person who cannot resist with fatal consequences; and § 308 Detonating explosives with fatal consequences. It should also be noted that any attempt to commit a crime may be punished with a lesser sentence (see § 23). This means that for attempted murder a court has a discretion whether to impose life imprisonment or not. 135

Table 7: Life Sentences Imposed in the States of the former (western) Federal Republic of Germany 1977 to 1999 Year

1977 1978 1979 1980 1981 1982 1983 1984 1985

Total number 64 52 54 54 70 70 68 87 86

1986 1987 1988 1989 1990 1991 1992 1993 1994

Women

Men

Total sentenced for Murder or Attempted Murder

Total sentenced for offences other than Murder

4 3 4 4 3 2 3 4 7

60 49 50 50 67 68 65 83 79

63 51 54 53 70 70 68 86 82

1 1 0 1 0 0 0 1 4

83 78 77 60 56 56 65 72 86

8 2 3 9 1 0 1 5 8

75 76 74 51 55 56 64 67 78

82 76 76 58 56 55 64 and 1 for Attempted Murder § 21 1 read with §23 68 and 3 for Attempted Murder § 21 1 read with §23 82 and 3 for Attempted Murder § 21 1 read with §23

1 2 1 2 0 1 0 1 1

1995s 1996a 1997"

100 100 122

5 3 6

95 97 116

93 and 7 for Attempted Murder § 21 1 read with §23 96 and 3 for Attempted Murder § 21 1 read with §23 104 and 9 for Attempted Murder § 21 1 read with §23

0 1 9

1998a

128

12

116

96

4

92

109 and 15 for Attempted Murder § 21 1 read with §23 83 and 8 for Attempted Murder § 21 1 read with §23

4

a

1999

5

Particularly serious Manslaughter § 212 II Particularly serious Manslaughter § 212 II Particularly serious Manslaughter § 212 II

Particularly serious Manslaughter § 212 II 2 for Particularly serious Manslaughter § 212 II 2 for Robbery resulting in a fatality § 251 Particularly serious Manslaughter § 212 II Both for Particularly serious Manslaughter § 212 II Particularly serious Manslaughter § 212 II Both for Particularly serious Manslaughter § 212 II Particularly serious treason § 94 II Particularly serious Manslaughter § 212 II Kidnapping and extortion with fatal consequences § 239a II Robbery resulting in a fatality §251 4 for Robbery resulting in a fatality §25 1 5 Particularly serious Manslaughter §212 II 2 for Robbery resulting in a fatality §251 2 Particularly serious Manslaughter §212 II 1 for Sexual coercion with fatal consequences § 178 3 for Robbery resulting in a fatality §251 1 Particularly serious Manslaughter §212 II

Source: Statistisches Bundesamt Wiesbaden: Strafverfolgung. Vollstandiger Nachweis der einzelnen Straftaten 1977-1999. Wiesbaden. 1978-2000. Including statistics from East Berlin.

Germany Table 8: Prisoners Serving Life Sentences in the States of the former (western) Federal Republic of Germany 1977 to 1999 Year 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 a 1993a 1994 a 1995a 1996a 1997a 1998a 1999a

Men 945 932 926 918 923 952 949 979 1020 1040 1058 1 101 1 124 1093 1 126 1256 1244 1245 1 257 1273 1324 1 394

Women 44 47 41 38 38 37 39 41 42 48 48 52 55 56 51 51 50 57 57 54 54 56

Total 989 979 967 956 961 989 988 1020 1 062 1088 1 106 1 153 1 179 1 149 1 177 1307 1294 1302 1 314 1327 1 378 1450 1513

Source: Statistisches Bundesamt Wiesbaden: Strafvollzug, 1977-1999. Wiesbaden, 1978-2000. a Includes the former East German States murder and, to a lesser extent, other forms of homicide are largely of symbolic significance. The overall number of prisoners who were being held in prison for life on 31 March 1999 was 1513. This figure represents about 3 percent of the sentenced prisoners in the Federal Republic of Germany.5 As Table 8 shows, the number of lifers in prison long remained relatively stable. It has increased gradually in recent years, although this may be attributed in part to the inclusion of lifers imprisoned in the former East German States. According to unpublished prison population figures, there were 50 101 sentenced prisoners in the "old Federal States" on 30 June 1998: Frieder Dunkel "Germany" in Dirk van Zyl Smit and Frieder Dunkel (eds.), Imprisonment Today and Tomorrow: International Perspectives on Prisoners' Rights and Prison Conditions, 2nd. ed., The Hague: Kluwer, 2001, 305. 137

Chapter 4 Life sentences in Germany are not imposed with varying periods to be served before release is considered and there are no natural life sentences. Since 1982, when a statutory procedure for the consideration of the release by a court of lifers after they had served a minimum of 15 years was introduced, lifers may be released in terms of that procedure or be pardoned by the State (Lander} governments.6 Prior to that, pardon was the only option. Careful calculations by Hartmut-Michael Weber comparing the period 1982 to 1989 with the pardons that were granted between 1945 and 1975 show that under the regime of pardons lifers served a median term of 20 years and three months.7 From 1982 to 1989 offenders were released in terms of the statutory procedure after a median term of 18 years and seven months. (In addition a small number continued to be pardoned between 1982 and 1989 after having served a median of 16 years and four months). It is difficult to draw any firm conclusions from these figures, particularly if it is borne in mind that many of the earlier lifers were serving life sentences for multiple murders committed during World War II. A further distorting factor is that it is estimated that about 17 percent of prisoners sentenced to life imprisonment in fact die in prison.8 What is noticeable is that the number of lifers in prison is increasing (see Table 8) indicating that lifers are being imprisoned at a greater rate than they are released annually. Do these figures include all those persons whose imprisonment after detention is potentially life long? Two concerns that arise in other countries may be eliminated immediately. First, the tables do not include juveniles, as under no circumstances may persons under 18 years of age be sentenced to life imprisonment.9 Ten years is the maximum sentence for those older than 14 years but under the age of 18 years. This also applies to juveniles up to the age of 21 years, unless they are regarded as adults. Even then life imprisonment is not compulsory, as a punishment of from ten to 15 years may be imposed in its stead.10 Secondly, it is unlikely that an effective life term can be imposed by long determinate sentences. The maximum length of a determinate sentence is 15 years.11 Moreover, when an offender is convicted of multiple crimes, these have to be taken together for the purpose of sentence.12 If the penalty for one of the offences is already a life sentence, penalties for other offences are simply regarded as assumed under it.13 In other cases the total punishment is reached by increasing the sentence for the most serious single

6 7 8 9 10 11 12 13

See section 5 below. Hartmut-Michael Weber, Die Abschaffung der lebenslangen Freiheitsstrafe; Fur eine Durchsetzung des Verfassungsanspruchs, Baden-Baden: Nomos, 1999, 59. Ibid., 56. § 18( 1) of the Juvenile Justice Act. § 106 of the Juvenile Justice Act. Preventive detention may also not be imposed on young adults: ibid. §38(2) of the Penal Code. §53 of the Penal Code. §54(1) of the Penal Code.

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Germany offence,14 but it is specifically provided that such an increased sentence must be less than the simple sum of the individual sentences and that it may never exceed 15 years.15 The figures on life imprisonment do not include persons who are in preventive detention. Germany has an explicit 'second track' to deal with certain recidivist and multiple offenders who, because they have a propensity to commit major offences, that is offences that seriously damage the victim psychologically or physically or which cause serious economic loss, are a danger to society.16 Such offenders may be subject to "measures" that allow them to be detained indefinitely in a prison.17 In recent years their numbers have declined considerably: fewer than 50 have been admitted annually.18 In 1991 there were 187 persons in preventive detention in the former West Germany compared to 1177 lifers.19 Indications are that this ratio is likely to have declined through the 1990s, although the extension of powers of preventive detention in 1998 may lead to this trend being reversed.20 2. HISTORICAL BACKGROUND The history of life imprisonment in Germany is similar to that in both England and the United States of America in that life imprisonment was gradually accepted as an independent sentence for serious crimes in the course of the nineteenth century, a period in which the use of the death penalty declined significantly. Life imprisonment was recognised as a sanction in its own right in the Penal Code of the German Reich of 1871, the forerunner of the modern German penal codes.21 In the nineteenth century relatively little attention was, however, paid to the details of what life imprisonment should entail.22 In the early twentieth century there was a lively discussion about release procedures for prisoners serving life sentences, informed for the first time by comparative empirical research.23 It was argued that a statutory release procedure would encourage prisoners to reform as they would not be subject to the uncertainty inherent in pardon. At the same

Ibid. Ibid. §§66 and 67d of the Penal Code. See, in general, Jorg Kinzig, Die Sicherungsverwahrung auf dem Prufstand, Freiburg: Max Planck Institut fur auslandisches und internationales Strafrecht, 1996; Johannes Kern, Brauchen wir die Sicherungsverwahrung? Zur Problematik des § 66 StGB, (Doctoral Dissertation in Law, Heidelberg, 1997), Frankfurt: Peter Lang, 1997. Strictly speaking, this has only been true since 1998. Before that there was an upper limit of ten years when preventive detention was imposed for the first time. See section 8 below. Kinzig (n. 16) 133. Ibid. See section 8 below. Klaus Laubenthal, Lebenslange Freiheitsstrafe - Vollzug und Aussetzung des Strafrestes zur Bewahrung, Lubeck: Schmidt-Romhild, 1987, 64. Ibid., 65. Cf. Moritz Liepmann, "1st die Todesstrafe im kunftigen deutschen und osterreichischen Strafgesetzbuch beizubehalten?" in Schriftfuhreramt der standigen Deputation (eds.), Verhandelungen des Einunddreifiigsten Deutschen Juristentages, Vol. 2, Berlin: Gutentag, 1912, 572. 139

Chapter 4 time, such a statute could be used to avoid the destructive psychological effects that imprisonment has, as early empirical studies recognised.24 These relatively progressive suggestions from lawyers and medical doctors did not get beyond the stage of public debate and draft legislation.25 In the event, they were overtaken by the rise of National Socialism, which led to a great increase in the use of the death penalty, as well as the querying of life imprisonment on the cynical basis that there was no point in the State paying to keep alive offenders who were destined to die in prison.26 The early twentieth century also saw a discussion of the possibility of preventive detention as an additional basis for incarcerating 'dangerous habitual criminals'. The Penal Code of the German Reich of 1871 had no provision for such measures, but the leading German criminal lawyer of the period, Franz von Liszt demanded in 1882 in his influential 'Marburger programme' that "incorrigibles" be detained for life or for an indeterminate period. 27 Although Von Liszt had in mind a 'single track', in which one sentence would serve both penal and preventive functions, others scholars favoured a 'twin track' approach. Proposals for the legislation to enact such 'twin track' laws soon surfaced and were debated in Switzerland and Germany from 1893 onwards.28 These proposals were not enacted, but were accepted by the National Socialists in an extremely wide-ranging form.29 The result was that indefinite preventive detention was applied in a significant number of cases from 1934 to 1945.30 In 1949 the problems of life imprisonment were not foremost in the minds of the drafters of the Constitution for the post-war Federal Republic of Germany. The primary concern was to ensure that the death penalty, which had been so prominent in the Nazi period, was permanently outlawed. Life imprisonment was mentioned only in passing in their deliberations and then only as an alternative for the sentence of death.31 Not surprisingly therefore, although article 103 of the basic law, the Grundgesetz, abolished the death sentence, it makes no mention of life imprisonment at all. In the decade after 1949 life imprisonment was not subject to much attention either, as public debate was preoccupied with the question of whether the death penalty should be reinstated.32 During the same period juveniles were effectively removed from the ambit of life imprisonment by the nullification of a 1943 law that had allowed juveniles above the age of 16 years to 24 25 26 21 28

29 30 31 32

Ibid., 751. Laubenthal (n. 21) 83-84. Ibid., 66. Franz von Liszt, Strafrechtliche Aufsatze und Vortrage, Vol. 1, Berlin: Gutentag, 1905, 169. The 1893 draft of the Swiss Penal Code was the work of Carl Stooss, whose definition of "the murderer" in the same draft still forms the basis of the controversial definition of murder in the current German code discussed below. See Kinzig (n. 16) 10-11, who points out that the definition developed by Stooss of someone who has a tendency to recidivism, is still followed by current commentators. Kinzig (n. 16)12-23. Kinzig (ibid.) at 20 points out that there were public calls from Nazi leaders for the courts to make more generous use of such measures. Laubenthal (n. 21) 86. Ibid.

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Germany be sentenced as adults if their psychological and emotional development was equivalent to that of a person aged 18 years.33 In the 1960s, a number of important questions of penal policy began to be posed, which would eventually lead to a general re-evaluation of the sentence of life imprisonment. The first of these concerned the difficult problem of the definition of the erstwhile capital offences. The German Penal Code made provision for a number of crimes for which the sentence of life imprisonment could be imposed. However, it was (and is) extremely rare for a life sentence to be pronounced in any case where it was not compulsory to do so. The crimes of murder and genocide were the only crimes for which the sentence of life imprisonment was mandatory. In practice this meant that the distinction between murder and manslaughter (which was subject to a discretionary life sentence only in especially severe cases) assumed great significance.34 The definition of murder listed specific characteristics, which the perpetrator of an intentional homicide had to show in order to be regarded as a murderer. Article 211(2) of the Penal Code stated: "A murderer is anyone who kills a human being: from a lust to kill, to satisfy his sex drive, from covetousness or other base motives; treacherously or cruelly or by means endangering the community or for the purpose of making possible or concealing the commission of another crime."35 Manslaughter in turn was defined negatively by § 212(1) of the Code: "Whoever kills a human being under circumstances not constituting murder shall be punished for manslaughter..."36 Whether these definitions, which had been introduced in 1941 and that at the time were alleged to reflect Nazi assumptions about what the people regarded as murder, should continue to be used, was understandably controversial. In the event, the Nazi connotations were played down and the provision remained substantially unaltered.37 33 34

35 36 37

Ulrike Grasberger, Verfassungsrechtliche Problematiken der Hochststrafen in den USA und in der Bundesrepublik Deutschland, Bonn: Forum Verlag Godesberg, 1996, 214. See, in general, Sven Thomas, Die Gechichte des Mordparagraphen — eine normgenetische Untersuchung bis in die Gegenwart, Bochum: Brockmeyer, 1985. A summary of the earlier reform proposals can also be found in the evidence presented by Bertram to the Federal Constitutional Court in 1977. His evidence is recorded in Hans-Heinrich Jescheck and Otto Triffterer (eds.), 1st die lebenslange Freiheitsstrafe verfassungswidrig?, Baden-Baden: Nomos, 1978, 167 - 171. Trans. Joseph J. Darby, The American Series of Foreign Penal Codes, Vol. 28, Littleton: Fred B. Rothman and Co., 1987. This aspect of the provision has remained substantially unchanged. Translated by Darby (ibid.) as: Less serious cases of manslaughter are further distinguished by § 213 of the Code. They relate to provocation or where "circumstances indicate the existence of a less serious case." There is still considerable dispute amongst scholars about the extent to which the definition of the characteristics of murder reflected Nazi thought. Albin Eser in his comprehensive report (Gutachten) to the 53rd conference of German Jurists on the redefinition of murder, manslaughter and infanticide (Verhandlungen des dreiundfunfzigsten deutschen Juristentags, Munich, 1980) sees the roots of the provision in a draft proposed by Swiss jurist, Stooss, in the late nineteenth century. He finds its immediate forerunner in the Swiss Penal Code of 1937. Thomas (n. 34) emphasises more strongly how closely the available concepts fitted Nazi thought and, in particular, the extent to which the characteristics of murder 141

Chapter 4 The second question was the extent to which the State had a constitutional duty to involve itself, qua welfare state (Sozialstaat), in the reformation and resocialization of prisoners.38 Although prisoners sentenced to life imprisonment were initially excluded from these reformative endeavours and therefore also from release on probation, it was only a matter of time before the principles underlying the distinction between life imprisonment and imprisonment for a fixed period were examined critically. The third question that arose concerned the pardons for prisoners already sentenced to life imprisonment. There was no other procedure for releasing such prisoners before the end of their natural lives, and in practice such pardons were granted relatively freely. The decision of whether to pardon a particular prisoner was to be taken not by the federal government but by the governments of the various States (Lander).39 It soon became obvious that pardons were granted far more freely in some States than in others.40 From 1957 onwards, the Federal Ministry of Justice sought to introduce a co-ordinated national strategy for the pardon of prisoners serving life sentences.41 However, it failed in these attempts as the individual states refused to give up this aspect of their sovereignty.42 Preventive detention was relatively uncontroversial in the immediately post-war years. Although the law governing it that had been introduced by the Nazis remained on the statute books in West Germany,43 it was used relatively sparingly in the late 1940s and early 1950s. Gradually, however, the number of instances of its use increased (although not to pre-war levels), as did the concerns about whether it met the standards of the new constitutional order. To this was added empirical evidence that people who were not truly dangerous were being detained. In the general criminal law reform of the 1970s the law was changed substantially and stricter criteria were set for preventive detention.44 Preventive detention was limited to those offenders "who had a tendency to commit serious offences, which would severely damage the victim psychologically or physically referred to conduct that related to a "dishonourable killing" and which therefore could be linked to Blut und Boden concepts of right and wrong. He thus finds problematic the failure to alter the definition, in spite of its Nazi links. See, in particular, the influential work of Horst Schuler-Springorum, Strafvollzug im Ubergang: Studien zum Stand der Vollzugsrechtslehre, Gottingen: Otto Schwartz, 1969. For a detailed discussion of the procedure and practice of granting pardons see Otto Triffterer and Hermann Bietz, "Strafaussetzung fur 'Lebenslangliche'", (1974) 7 Zeitschrift fur Rechtspolitik, 148; Thomas Uppenkamp, Die Begnadigung und ihre Bedeutung bei der lebenslange Freiheitsstrafe, (Doctoral Dissertation, Munster, 1972). Triffterer and Bietz (n. 39) record that at the end of 1973 the average period served by prisoners before they were pardoned varied from 15 years in Schleswig-Holstein, Hamburg and Bremen, to 22 years in North Rhine-Westphalia. Laubenthal (n. 21)89. Ibid., 90-91. The developments in the GDR were significantly different. Preventive detention was regarded as a 'facist' institution and abolished. However, significantly heavier sentences could be imposed on recidivists: for details see Kinzig (n. 16) 23-25. The first general Criminal Law Reform Act of 1970 made major changes by repealing the existing § 20a of the Penal Code and amending § 42e. The second Criminal Law Reform Act of 1975 renumbered the paragraphs but made no substantial changes. References below are to the sections as they were after 1975. 142

Germany or which, because of serious economic loss, were dangerous to the general public".45 There were further criteria that had to be met: the offender would have had to have committed an intentional crime and to have been sentenced to a term of imprisonment of more than two years;46 in addition, the offender would have had to have had two previous convictions for such crimes for which he had been sentenced to at least one year of imprisonment47 and would have had to have actually served at least two years in prison for such crimes.48 The preventive detention would follow the serving of the prison sentence, at which stage the court would have again to enquire whether such detention was still required.49 There were further safeguards. Preventive detention could not be imposed where the significance of the offences committed by and anticipated from the offender were disproportionate to the danger presented by him.50 Preventive detention had to be reconsidered at least every two years51 and no offender could be detained for longer than ten years in the first instance.52 This relatively restrictive legal regime for preventive detention remained in force until 1998.53 3. THE PURPOSE OF IMPRISONMENT AND THE LIFE SENTENCE The status of life imprisonment was to reach the courts primarily in the context of a wider question about the constitutionally acceptable objectives of the implementation of sentences of imprisonment. The route, however, was somewhat indirect. In 1966, an influential 'alternative' draft penal code was published by a group of liberal professors of law.54 Although they accepted, for strategic reasons,55 the retention of the sentence of life imprisonment, they proposed a clause which would allow the court responsible for the supervision of punishment to release a prisoner serving a life sentence on probation after he had completed 15 years of his sentence and when there was reason to suspect that he would not commit further offences. The purpose of the new clause was to allow for the release of a prisoner at the time, which, from a 'crimino-pedagogical' point of view, would be most fruitful.56

§ 66(1) 3 of the Penal Code. §66(1) of the Penal Code. §66(1)1 of the Penal Code. §66(1) 2 of the Penal Code. §67c of the Penal Code. § 62 of the Penal Code. § 67g of the Penal Code, re-enacted as § 67e after 1998. §67d(l) of the Penal Code. See section 8 below for subsequent developments. Jurgen Baumann et al., Alternativ-Entwurf eines Strafgesetzbuches: Allgemeiner Teil, Tubingen: J.C.B. Mohr, 1966. One of the most influential members of the group, Baumann, later explained that they did not believe that it would be politically possible to achieve the abolition of the sentence of life imprisonment: Laubenthal (n. 21)91. Laubenthal (n. 21). 143

Chapter 4 The alternative draft penal code did not find immediate favour. In 1969, a special commission of the Bundestag on criminal law reform rejected this clause. Instead, the commission expressed the pious hope that a way would be found of unifying the practice of granting pardons, which would make legislative intervention unnecessary.57 In the more general sphere of the law governing the implementation of the sentence of imprisonment, however, the constitutional wheels had begun to turn. In a remarkable series of judgments in the early 1970s, the Federal Constitutional Court proceeded to spell out the constitutional position of prisoners. The first of these58 emphasised that the constitutional rights of prisoners could be limited only by an Act of Parliament, which meant that the legislature would have to replace the existing subordinate legislation which governed prisons with new, primary legislation.59 Moreover, the Court warned that such legislation would have to specify the purpose of imprisonment and lay down legal rules, which would allow this purpose to be achieved in a manner compatible with the Constitution.60 The constitutional debate, on the form that the new prison legislation should take, centred on the application of the notions of the Rechtsstaat and the Sozialstaat in this sphere. The former was interpreted in a relatively straightforward way as requiring that prisoners should have certainty about their legal position and access to the courts to enforce their rights. The latter notion was more difficult to apply. It was widely accepted that the doctrine of the Sozialstaat meant that the state had an obligation to concern itself with the welfare of its citizens, but did this extend to a constitutional duty on it to attempt to resocialize prisoners? Moreover, could prisoners derive positive rights from the obligations imposed on the state by this doctrine? In its judgment in the so-called Lebach case, the Constitutional Court adopted a clear position in which it argued that constitutional rights and duties for both prisoners and prison authorities could be derived from the concept of resocialization as it had to be implemented in a Sozialstaat.61 The Court explained: "From the point of view of the offender, this interest in resocialization develops out of his constitutional rights in terms of article 2(1) in conjunction with article 1 of the Grundgesetz [i.e. the right to develop one's personality freely in conjunction with the protection of human dignity]. Viewed from the perspective of the community, the principle of the Sozialstaat requires public care and assistance for those groups in the community whom, because of personal weakness or fault, incapacity or social disadvantage, were retarded in their social development: prisoners and ex-prisoners also belong to this group."62

57 58 59 60 61 62

Ibid., 93. BVerfGE 33 1 (BVerfGE is the citation for the decisions of the Federal Constitutional Court). Cf. art. 19(1) of the Grundgesetz. BVerfGE 33 11. BVerfGE 35 203. BVerfGE 35 236.

144

Germany At the end of 1976, a new Prison Act, which was designed to conform to these standards, was enacted. Article 2 of the new Act specified positively the purpose of imprisonment: "In the implementation of the prison sentence, the prisoner shall be given the capacity to lead a socially responsible, law-abiding life (purpose of imprisonment). The implementation of the prison sentence serves also to protect the public against further offences."63 A second noteworthy feature of the new Act was that in principle it drew no distinction between prisoners serving fixed terms and those serving life sentences.64 Only in the case of prison furloughs did it specify that prisoners sentenced to life imprisonment should not be considered for such furloughs until they had served at least ten years in prison, but even this exception fell away where these prisoners had been transferred to an open prison.65 4. THE CONSTITUTIONAL CHALLENGE In 1977 the constitutionality of the sentence of life imprisonment was challenged directly before the Federal Constitutional Court.66 The matter was brought before the Court because the State Court in Verden had doubts about the constitutional validity of a mandatory sentence of life imprisonment, which it had to impose after having convicted an offender of murder.67 The facts of the case were somewhat bizarre. The accused, a policeman who was involved in drug dealing, was threatened with exposure by one of his agents unless he provided him with further drugs. In order to eliminate this threatened extortion, the accused made an appointment with his agent and, when the agent's back was turned, shot and killed him.68 As the killing had been committed "treacherously" (heimtuckisch) and in order "to conceal the commission of another crime,"69 the characteristics of murder were clearly present. The State Court found that, on the particular facts of the case, it would not have imposed a sentence of life imprisonment, had such a sentence not been mandatory. Since the vast majority of the offenders sentenced to life imprisonment in

The words in brackets are incorporated in the same way in the original German version. Heinz Muller-Dietz, "Mord, lebenslange Freiheitsstrafe und bedingte Entlassung", (1983) 5 Jura, 569ff and 628ff. § 13(3) of the Prison Act. BVerfGE45 187. Reported in (1976) 1 Neue Juristische Wochenschrift, 980ff. Cf. art. 100( 1) of the Grundgesetz, which provides that when a lower court finds that a national legislative provision is unconstitutional, it must refer the matter to the Federal Constitutional Court before proceeding with the case in hand. (1976) 1 Neue Juristische Wochenschrift, 981. See the definition of murder, above. 145

Chapter 4 West Germany were convicted of murder,70 this case therefore went to the heart of the constitutional debate about the life sentence. In its submissions to the Federal Constitutional Court, the State Court in Verden raised a number of important constitutional issues. First, it found that the psychological effects of very long terms of imprisonment were so negative that any sentence that induced these effects was contrary to the fundamental right to human dignity guaranteed by article 1 of the Grundgesetz.71 Secondly, it held that were a sentence of life imprisonment to be implemented so that a prisoner was in fact incarcerated for the rest of his natural life, this would mean that his constitutional right to freedom of movement would have been eliminated.72 Such an action would infringe the provision of the Grundgesetz, which allows fundamental rights to be restricted by legislation but not abolished.73 Thirdly, the State Court argued that the definition of murder was itself constitutionally problematic because only intentional homicides with specific aggravating characteristics are defined as "murders".74 In the opinion of the State Court, an artificial distinction was thus drawn between murder and manslaughter, which did not reflect accurately the degrees of culpability of persons accused of homicide, nor the relative heinousness of their crimes. Yet, for a crime defined as murder the sentence of life imprisonment was compulsory, while for manslaughter it had to be imposed only in "especially serious cases".75 This meant that the fundamental constitutional principle of equality before the law was being infringed by the artificial process of definition. The State Court also submitted that life imprisonment was unconstitutional because it was based on a notion of the nature of punishment, which was inherently unconstitutional.76 Public acceptance of life imprisonment was irrelevant, the State Court argued, to the consideration of its constitutionality. On the one hand, life imprisonment could not be justified on grounds of deterrence, as there was no empirical evidence that life imprisonment has a generally deterrent effect. On the other hand, punishment which was merely a form of revenge was not acceptable either, as both the new Prison Act and the earlier judgments of the Federal Constitutional Court had emphasised that resocialization had to be the primary goal of the implementation of prison sentences. The very pronouncement of a sentence of life imprisonment contradicted this goal, as it formally negated the idea that the offender would again be called upon to lead a crimefree life in a free society. The State Court argued further that the practice of granting pardons did not overcome this fundamental flaw in the life sentence.77 It explained that, even if it were true that life See Table 7. (1976) 1 Neue Juristische Wochenschrift, 981. Cf. art. 2(2) of the Grundgesetz. (1976) 1 Neue Juristische Wochenschrift, 981. Cf. art. 19(2) of the Grundgesetz. (1976) 1 Neue Juristische Wochenschrift, 981-982. Cf. § 212(2) of the Penal Code. (1976) Neue Juristische Wochenschrift, 983. Ibid., 984. 146

Germany sentences were usually not served in full because more prisoners were released before the end of their lives in terms of the (very different) systems of granting pardons implemented by the various States, this did not justify a sentence that in its content and objectives was contrary to the Constitution. The State Court argued, as had a number of scholars before, that because pardons were not subject to judicial control, they did not provide an adequate guarantee to ensure the individual prisoner's right to have his potential for release properly considered. The case presented by the State Court covered the full spectrum of constitutional arguments against life imprisonment and the Federal Constitutional Court had no difficulty in recognising that constitutional issues had been raised which it had to consider.78 The following passage from the judgment gives some sense of the extent to which the Court saw itself being confronted by such issues: "Of course, in terms of article 3(2) of the Grundgesetz the right of personal freedom may be limited by an Act of Parliament. However, the freedom of the legislature to introduce legislation is limited by the Constitution in a number of ways. In exercising its powers the legislature must take account of both the inviolability of human dignity (art. 1(1) of the Grundgesetz), the highest principle of the constitutional order, and also further constitutional norms such as the principle of equality (art. 3(1) of the Grundgesetz) and the precepts of the Rechtsstaat and the Sozialstaat (art. 20(1) of the Grundgesetz). Since the freedom of the individual is already such an important legal interest that it may only be limited on particularly weighty grounds, the life-long removal of freedom requires to be tested particularly strictly against the standard of the principle of proportionality."79 The degree to which the Federal Constitutional Court recognised the importance of the matter before it was emphasised by the wide range of testimony it considered. The Federal Government and the State governments were invited to express their views.80 Several of them chose to do so.81 The Court also received written and unusually extensive oral testimony from psychiatrists and professors of law and criminology.82 The bald conclusion to which the Federal Constitutional Court came was that the sentence of life imprisonment for murder was not inherently unconstitutional.83 However, its wide-ranging judgment covered most of the debate about life imprisonment and its recommendations had an important impact on practical developments. The key to its reasoning was its acceptance of the notion of the Behandlungsvollzug, that is of the treatment-orientated implementation of the sentence of imprisonment, and its enthusiastic

78 79 80 81 82 83

BVerfGE45 187 at 220. Ibid., 223. Ibid., 196. Ibid. These were reported in Jescheck and Triffterer (n. 34). BVerfGE45 187 at 188. 147

Chapter 4 endorsement of the new Prison Act,84 as the legal vehicle for this policy. As the Court expressed it: "The threat of life imprisonment is complemented, as is constitutionally required, by meaningful treatment of the prisoner. The prison institutions also have the duty in the case of prisoners sentenced to life imprisonment, to strive towards their resocialization, to preserve their ability to cope with life and to counteract the negative effects of incarceration and destructive personality changes that go with it. The task that is involved here is based on the constitution and can be deduced from the guarantee of the inviolability of human dignity contained in article 1(1) of the Grundgesetz"85 This understanding of the function of the prison system assisted the court in rejecting the submission that life imprisonment leads to prisoners suffering permanent psychological damage. The expert evidence that the Court heard was inconclusive on this point, with some claiming that the traditional view that very long periods of imprisonment inevitably lead to personality deterioration, could no longer be supported.86 The Court used the argument that recent changes in prison legislation had contributed to the development of a prison system where deterioration of the personality of the longterm prisoner was unlikely to take place. The Federal Constitutional Court trod carefully around the wide question of the constitutionality of life imprisonment per se. It held that theories of punishment were not primarily of constitutional concern.87 It argued that there could be no objection to the socalled Vereinigungstheorie, which was dominant in German criminal law and which sought to combine the various purposes of punishment, albeit with different emphases, depending on the offence and the circumstances of the case. Applied to murder this meant that the legislature was entitled to prescribe the heaviest penalty at its disposal, for the offence infringed upon the citizen's right to life, the highest legal interest of all. Even if it could not be demonstrated empirically that life imprisonment served a general preventive function, the constitutional duty of the state to protect human life meant that there could be no objection in principle to it prescribing the penalty of life imprisonment as a general indication of the value it attached to human life.88 The imposition of a life

See, for example, the pronouncement at 240: "The new legislation about prisons and the determination of the purposes of imprisonment must he regarded as a significant contribution to the creation of a humane prison system." Ibid. 238. The full testimony is recorded in Jescheck and Triffterer (n. 34). BVerfGE45 187 at 253. Similar arguments were applied by the Federal Constitutional Court in its far briefer judgment of April 24, 1978, where it upheld the constitutionality of the discretionary imposition of the sentence of life imprisonment "in particularly grave cases" of manslaughter (as provided for by § 212(2) of the Penal Code): see the report in 1979 Juristische Rundschau, 28 (with commentary by Bruns). 148

Germany sentence could also be justified as serving as a form of expiation by the offender without, in the view of the court, excluding his eventual resocialization.89 At the same time, the positive attitude adopted by the Federal Constitutional Court towards resocialization made it more sympathetic to the view that the manner in which prisoners serving life sentences should be released should be reconsidered. The court held that life imprisonment could only be regarded as compatible with human dignity and the requirements of the Sozialstaat if the prisoner retained a concrete and fundamentally realisable expectation of eventually being released:90 "The essence of human dignity is attacked if the prisoner, notwithstanding his personal development, must abandon any hope of ever regaining his freedom."91 The Federal Constitutional Court agreed with the State Court in Verden that vagaries of the system of pardons were such that the spes of a pardon was insufficient to meet this expectation. The Constitutional Court explained what had to be done to ensure that the implementation of life imprisonment remained constitutional: "In a case like the one before the Court, in which the weighty decisions to be made involve questions which are of essential significance to the persons concerned, the principle of legal certainty as well as the demands of natural justice require that conditions, in terms of which a prisoner serving a life sentence is released and the procedure to be followed in securing his release, should be determined by legislation. The form that such legislation should take, should be determined by the legislature, but within the framework laid down by the constitution."92 This instruction to the legislature was the most important positive result of the decision of the Federal Constitution Court, as it rejected the remaining constitutional objections raised by the State Court. On the question of the definition of murder, however, its findings were also not without practical import. The Constitutional Court agreed with the State Court that it followed from the constitutional principles of the inviolability of human dignity93 and the right of every person to develop his own personality94 and the principle of the Rechtsstaat, that the offence and the legal consequence should be properly related to each other. There should be proportionality between the prescribed punishment on the one hand, and the heinousness of the offence and the culpability of the offender on the other.95 The Constitutional Court held, however, that this could be achieved within the framework of the existing definition of murder. What was required by the Constitution was that the specific characteristics of the statutory crime of murder

BVerfGE 45 187 at 254-256. Ibid., 228. Ibid., 245. Ibid., 246. Cf. also at 252. Article 1(1) of the GrundgesetzArticle 2( 1) of the Grundgesetz. BVerfGE 45 187 at 260. 149

Chapter 4 should be interpreted so strictly that offenders who did not deserve life imprisonment could not be convicted of murder.96 5. THE IMPACT OF THE 1977 DECISION OF THE FEDERAL CONSTITUTIONAL COURT The carefully nuanced judgment of the Federal Constitutional Court was interpreted in a variety of ways, ranging from those critics who saw it as virtually abolishing life imprisonment97 to those who saw it as giving unqualified approval to the sentence.98 Most commentators, however, awaited the legislation, which the Constitutional Court had required of Parliament. In the event, the gestation period of the new legislation was protracted. What had been envisaged as a relatively technical amendment of the Penal Code became a political football to be kicked backwards and forwards between the two houses of Parliament as politicians made much of their determination to ensure that serious offenders were punished 'adequately'.99 Much of the dispute centred on the question of what minimum period of detention should elapse before a prisoner sentenced to life imprisonment could be considered for release on probation. Eventually, however, the lower house, the Bundestag, was able to use its superior constitutional position to enforce its view that this minimum period should be 15 years.100 The key subsection of the new § 57a, provides: "The court shall suspend the remainder of a life sentence [on] probation if: 1. the offender has served fifteen years of his punishment; 2. the gravity of the offender's guilt does not necessitate that he continue to serve his sentence; and 3. the conditions of § 57(1) sentence 1, numbers 2 and 3 are met."101 The conditions to which reference is made in § 57a are that: "2. circumstances justify an attempt to determine whether the offender will lead a law-abiding life outside prison; and 3. the offender agrees."102

Ibid., 267. Eberhard Schmidhauser, "Verfassungswidrigkeit der lebenslangen Freiheitsstrafe fur Mord und Verfassungwidrigkeit der BGH-Rechtsprechung zur Heimtucke als Mordmerkmal", (1978) Juristische Rundschau, 265. Hans-Heinrich Jescheck, Lehrbuch des Strafrechts, Allgemeiner Teil, 3rd ed., Berlin: Duncker and Humblot, 1978,617. Laubenthal (n. 21) 185-197. The upper house, the Bundesrat, led by the more conservative States of Baden-Wurttemberg and Bavaria, had proposed a minimum period of 20 years: Laubenthal (n. 21) 196. Trans. Darby (n. 35). Ibid. Subsection 2 was amended in 1998 by the Gesetz zur Bekampfung von Sexualdelikten und anderen gefahrlichen Straftaten. (For its provenance, see text at n. 177). In its amended form it sets as condition that 150

Germany This change in the law did not lead to a significant change in the length of the terms actually served by lifers,103 but it did at least bring a measure of openness to the procedure. Whether these changes were sufficient to eliminate differences between the different federal States is doubtful too, for not only did pardons remain a factor (and pardon is a matter for the State governments) but the decision of the courts on when to release prisoners continued to show significant statistical variations.104 Although the decision of the Federal Constitutional Court did not lead directly to an amendment of the substantive definitions of offences in the Penal Code, it did have an important indirect effect on the definition of the crime of murder. In a series of decisions, the chamber of the Federal Court (Bundesgerichtshof), which deals with criminal cases sought to limit the scope of the crime of murder by defining as narrowly as possible each of the characteristics that distinguish murder from manslaughter.105 The Court went even further in its decision of 19 May 1981.106 Confronted by a 'classical' case of a 'treacherous' homicide, which, however, had been initiated as a result of gross provocation and threats, the Court relied specifically on the earlier verdict of the Federal Constitutional Court as to the importance of maintaining proportionality between the crime and the sentence.107 It held that in such circumstances a so-called Rechtsfolgenlosung should apply. It meant that where life imprisonment would be disproportionate to the crime committed, extenuating factors could be considered even if there was no specific legislative provision for this to be done.108 Neither the legislative intervention nor the restrictive interpretation of the characteristics of murder has satisfied the critics of the German approach to life imprisonment. Academic lawyers were also particularly troubled by the Rechtsfolgenlosung developed in the decision of the Federal Court of 19 May 1981. They argued with considerable force that, although it may have offered a practical solution to a vexed problem by allowing for reduced sentences without disturbing the definition of murder, it went beyond the bounds of the constitutional duty of the ordinary courts to interpret statutes that have been held to be constitutionally acceptable.109 They also pointed out that the ruling which the Federal Court then introduced, that mitigating factors should only be considered in "extraordinary" circumstances, was particularly difficult to implement.'10

103 104 105 106 107 108 109 110

release must be justifiable taking into account the security interests of the public. It is not clear whether this change will have any practical impact. See text at (n. 7) above. See also Laubenthal (n. 21) 265; Frieder Dunkel, Gutachtliche Stellungnahme in Sachen -2 BvR 1041/88 and BvR 78/89 Bundesverfassungsgericht, Zweiter Senat, unpublished report, 1990. Weber (n. 7) 60-62. Albin Eser, "Die Totungsdelikte in der Rechtsprechung zwischen BVerfGE 45. 187 und BGH GSSt 1/81", (1981) 1 Neue Zeitschrift fur Strafrecht, 383ff and 429ff. Thomas (n. 34) 297-307. BGHSt 30 105 (BGH St is the citation of the decisions of the Federal Court in Criminal Cases). Ibid., 109-110. Ibid., 118. Cf. Albin Eser in Adolph Schonke and Horst Schroder, Strafgesetzbuch Kommentar, 23rd ed., Munich: H.C. Beck, 1988, 1402 and the sources cited there. Eser in Schonke and Schroder, op. cit. 151

Chapter 4 Other studies have concentrated on examining closely the specific, legislatively defined characteristics of murder. Thus, for example, Heine has been able to demonstrate empirically that the concept of a killing committed for "base motives" (niedrige Beweggrunde) is so vague that it cannot and does not provide a basis for distinguishing between murder and manslaughter.111 Similar doubts have been raised about the other characteristics of murder.112 The result is that there have been numerous proposals from academic writers for the redefinition of the crimes of murder and manslaughter.113 Strong dissatisfaction was also expressed with § 57a of the Penal Code. In particular, it was argued that where there was a positive prognosis that the offender would not commit further crimes, "the degree of the offender's guilt" should not have been introduced as a factor that would allow a prisoner to be detained beyond the minimum 15-year period.114 This argument was underscored by the empirical finding that, at least in the first year in which the new provision was implemented, the degree of the prisoner's guilt was the most important reason for not releasing him.115 It was pointed out that it was extremely difficult for the court charged with the implementation of sentences to determine 15 or more years ex post facto what the extent of the offender's guilt and the heinousness of his crime had been.116 Moreover, it was suggested that this procedure was unconstitutional, inter alia because the offender was in fact being punished again by a second court for his initial offence.117 6. FURTHER CONSTITUTIONAL DECISIONS Unfortunately, the argument that it is unconstitutional for the extent of the offenders' guilt to be taken into account when considering whether to release them on probation, was undermined by the finding of the Federal Constitutional Court in its decision of 28 June 1983, that this factor could be considered when deciding whether to grant leave of absence to prisoners serving life sentences.118 In passing, the Court also held that in 111 112 113 114 115 116 117

118

Gunter Heine, Totung aus "niedrigen Beweggrunden": Eine erfahrungswissenschaftlich-strafrechtsdogmatische Untersuchung zur Motivgeneralklausel bei Mord, Berlin: Duncker and Humblot, 1988. Bernd Schlechtriem, Das Mordmerkmal der Heimtucke und die lebenslange Freiheitsstrafe, (Doctoral Dissertation in Law, University of Cologne, 1986). For a summary, see Joachim Meyer, Zur gegenwartigen Behandlung des "Lebenslanglich" bei Mord, Bochum: Brockmeyer, 1989, 148. Uwe Revel, Anwendungsproblem der Schuldschwereklausel des § 57a StGB, Cologne: Carl Heymanns, 1989. Laubenthal (n. 21)267. Ulrich Baltzer, "Zur Problematik der lebenslangen Freiheitsstrafe", (1989) 10 Strafverteidiger, 42. Cf. art. 103(3) of the Grundgesetz, which lays down that no one may be punished twice for the same offence. For wider constitutional arguments see Heinrich Beckmann, "Die Aussetzung des Strafrestes bei lebenslanger Frieheitsstrafe", (1983) 36 Neue Juristische Wochenschrift, 537; Bernhard Haffke, '"Besondere Schwere der Schuld' und 'Verteidigung der Rechtsordnung' in den Gesetzentwurfen zur Aussetzung des Strafrestes bei lebenslanger Freiheitsstrafe" in Karl Bonner and Wolfgang de Boor, Antrieb und Hemmung bei Totungsdelikten, Basel: Karger, 1982, 19. BVerfGE64261.

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Germany particular cases it could also be constitutionally unexceptionable for such prisoners literally to be detained for the rest of their natural lives.119 This decision of the Federal Constitutional Court was the subject of widespread scholarly condemnation.120 All commentators preferred the minority judgment of Judge Mahrenholz, in which he argued that, by allowing the extent of the offender's guilt to be considered, the majority of the Court was departing from the conclusion reached in its decision of 21 June 1977, that the Constitution required that the principle of resocialization should govern the implementation of sentences of life imprisonment. Furthermore, Judge Mahrenholz held that if the prison authorities considered a factor such as the guilt of the accused in making internal decisions in relation to the implementation of a sentence of life imprisonment, they were failing in their constitutional duty to act within their statutory powers, as the Prison Act did not allow them to consider purposes of punishment extraneous to that Act.121 Moreover, there would be a further departure from constitutional norms, as the sentences of life imprisonment pronounced by a court would be applied differently to different offenders. In fact, substantively different sentences would be served by prisoners whose guilt was evaluated differently by the authorities. This contravened the provisions of the Grundgesetz requiring that offences and the punishment laid down for committing them be prescribed clearly by law.122 It was also contrary to the constitutionally recognised power of the judge, rather than the administration, to determine the sentence to be served.123 It follows logically that the opponents of allowing the extent of an offender's initial guilt to be considered as part of the decision on whether to release him or not, would wish to apply the same arguments as Judge Mahrenholz, for, from the perspective of resocialization, the decision to release on probation is an intimate part of the process of implementing the prison sentence. However, this was not to be. In its decision of 24 April 1986 the Federal Constitutional Court reiterated directly that the extent of the offender's guilt could be considered when deciding whether to release a prisoner.124 In this instance it upheld a decision not to release an 88 year old prisoner who had already served 22 years after having been sentenced to several concurrent terms of life imprisonment for murders committed in a concentration camp. The extent of the offender's guilt was in fact the only relevant factor, as there was no indication that he would re-offend. The 1986 decision did not settle all the constitutional questions arising from the legislated procedure for the release of the offenders serving life sentences and in 1992 the

119 120 121 122 123 124

Ibid., 272. Cf. Dirk van Zyl Smit, "Leave of Absence for West German Prisoners: Legal Principle and Administrative Practice", (1988) 28 British Journal of Criminology, 11-13, for a summary of this debate. BVerfGE 64 261, at 286-92. Ibid., at 295-296 Cf. art. 103(2) of the Grundgesetz, which incorporates the nullapoena sine lege principle. BVerfGE 64 261, 294. Cf. art. 92 of the Grundgesetz which, together with the principle of the Rechtsstaat, guarantees the authority of the courts. BVerfGE 72,105 153

Chapter 4 Federal Constitutional Court reconsidered the matter.125 Of particular concern was the allegation that the offender was in fact being resentenced by the court responsible for the decision to release the offender. In its decision of 3 June 1992 the Court was broadly sympathetic to this argument and decided that the legislative provision had to be interpreted in an elaborate way that would avoid this danger. The Court recognised that in murder cases there were differing degrees of guilt. It held, however, that the legislation governing release could be interpreted in a way that provided an acceptable framework to reflect this reality without removing the mandatory sentence of life imprisonment.126 The Constitutional Court ruled that what had to happen procedurally was that the trial court had to make a finding about the degree of guilt of the accused, as it was the only court that was competent to do so. Its decision on this aspect would bind the court responsible for the implementation of sentence that 15 years later would consider the release of the offender. If the latter court decided not to release the offender, having taken into account the seriousness of the offence as well as other relevant factors, it had to make a decision as to the date on which the offender was likely to be released. That date could, however, change if the surrounding circumstances changed. Even when the latter date was reached, the court responsible for the implementation of punishment would, however, still make the final decision about release on the basis of the prognosis of risk.127 The 1992 decision was not unanimous in its interpretation of the legislation. As in 1986, Judge Mahrenholz wrote a powerful dissent in which he raised more fundamental objections.128 Part of his judgment attacked the majority judgment directly. He held that the 1977 decision of the Federal Constitutional Court had not laid down that it was constitutionally essential for the legislature to introduce a system where the particular weight of the offender's guilt had to be determined by the trial court in accordance with the basic principles of sentencing and this determination used at a later stage to decide on whether the 'life terms' should be extended beyond an initial fixed period. He also held that if there were such a constitutional requirement the existing § 57 could not be interpreted to meet the requirement without straining the language of the provision to an unacceptable extent. Most importantly, Judge Mahrenholz held that although the Court had not been asked to consider the question of the mandatory nature of the sentence of life imprisonment for murder, a reconsideration of this aspect of the life sentence could not be avoided. It had become increasingly clear that the complicated procedure introduced by § 57 had made it impossible to ensure that a punishment that would meet the constitutional standard of proportionality to the guilt of the offender would result. Yet the substantive law relating to murder required the imposition of a life sentence in every case. From the recognition that there were degrees of guilt in murder should follow the simple conclusion that not all instances of murder should be punished with life imprisonment. In other words, there 125 126 127 128

BVerfGE 86, 288. Ibid., 320-323. Ibid., 323. Ibid., 340-354.

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Germany were fundamental constitutional objections to the mandatory life sentences specified in the provisions relating to murder.129 As with the 1986 decision, the decision of the majority in 1992 was widely criticised by professional scholars on various grounds.130 In their view it would not succeed in creating uniformity, which had been the primary reason for moving away from the old practice of release by pardon.131 The separate judgment of Judge Mahrenholz was welcomed as an indication that the mandatory life sentence for murder should be reconsidered.132 One result of the 1992 decision has been that the period of detention that lifers actually serve can be very lengthy. On 21 December 1994 the Federal Constitutional Court ruled that a case, where a release date 38 years after conviction on several counts each carrying a life sentence, did not raise constitutional issues that required a decision as the age of the prisoner still allowed him a realistic possibility of eventual release. In coming to its conclusion the Court conducted a brief survey of the release practices in the various Lander. It found that while most persons whose offences, if considered individually, would have rated more than one life sentence were released after 25 years, there were 16 cases nationally of prisoners serving longer periods. These were determined not only by the particular seriousness of the guilt of the offender but also by the absence of positive prognoses in the case of some offenders.133 The prominence given to the particular seriousness in determining which offenders will serve exceptionally long terms, as opposed to others who will be released more or less routinely after between 15 and 20 years, raises the question whether a class of 'super lifers' is not being created. In her comparative study of ultimate penalties in Germany and the United States of America, Grasberger comments perceptively that the rules for isolating this small group are similar to those applied to offenders in the USA whose offences are characterised by aggravating circumstances that justify the penalty of death in that society.134 7. ABOLITION AS THE (CONSTITUTIONAL) ALTERNATIVE? One of the most interesting aspects of the development of life imprisonment in Germany is the extent to which the constitutional terms of the discussion have found echoes in a wider public debate. To a large extent this has been the work of a group of activists who 129

Ibid., 354. BO Walter Stree, "Neue Probleme der Aussetzung einer lebenslangen Freiheitstrafe", (1992) 13 Neue Zeitschrift fur Strafrecht, 464; Renate Elf, "Die Relativierung der lebenslangen Freiheitsstrafe fur Mord durch die rechtsgestaltende Wirkung der Rechtsprechung des BVerfG und der Strafgerichte", (1992) 13 Neue Zeitschrift fur Strafrecht, 468; Ernst Stark, "Die lebenslange Freiheitsstrafe nach der Entscheidung des BVerfG vom 3. Juni 1992", (1994) 4 Juristen Zeitung, 189. 131 See also Herbert Trondle and Thomas Fischer, Beck'sche Kurzkommentar Strafgesetzbuch, 49th ed., Munich: Beck, 1999, 462-463. 132 Most recently by Michael Walter, Strafvollzug, 2nd ed., Stuttgart: Boorberg, 1999, 70. 133 (1995) 49 Neue Juristische Wochenschrift, 3244-3246. 134 Grasberger (n. 33) 189. 155

Chapter 4 are opposed to life imprisonment in principle and who are linked ideologically to the European prison abolitionist movement and politically to the Green Party in Germany and its allies.135 Their campaign has been characterised by conscious attempts to move beyond a discussion of current legislation to a more general critique of the institution of life imprisonment itself. Important in this respect was the Projektgruppe Fulda, which sought in the 1980s to involve prisoners and the wider public as well as academics in a citizens' initiative against life imprisonment.136 In the 1990s the Komitee fur Grundrechte und Demokratie played a similar role.137 One of its earliest initiatives at the beginning of the 1990s was to use the opportunity that the reunification of Germany appeared to present for constitutional change to propose that article 102 of the Grundgesetz, which provides simply "the death penalty is abolished", be amended to abolish life imprisonment as well. It is indeed noteworthy that a proposal for a draft constitution developed in East Berlin in the dying days of the German Democratic Republic included a clause that read, "The death penalty and life imprisonment are abolished".138 This initiative did not succeed, as the existing Constitution of the (western) Federal Republic of Germany was taken over with only minor modifications for the new, unified Federal Republic of Germany. In 1993139 and in 1994140 the Komitee held to two public hearings on the subject of life imprisonment, which culminated in a manifesto calling for the total abolition of life imprisonment.141 In 1996 this call was echoed by the Minister of Justice of the State of Schleswig-Holstein.142

135

See Note "Grune lehnen lebenslange Freiheitstrafe ab", (1996) 45 Zeitschrifi fur Strafvollzug und Straffalligenhilfe, 366. 136 In the introduction by Hartmut-Michael Weber to the book, Hartmut-Michael Weber and Projektgruppe Fulda (eds.), Lebenslang - wie lang?, Weinheim: Deutscher Studien Verlag, 1987, there is a description of the work of the group. See also Hartmut-Michael Weber and Sebastian Scheerer (eds.), Leben ohne lebenslanglich, Bielefeld: AJS, 1988. 137 Komitee fur Grundrechte und Demokratie (eds.), Wider die lebenslange Freiheitsstrafe Erfahrungen und Konsequenzen aus menschenrechtlicher Sicht, Sensbachtel: Komitee fur Grundrechte und Demokratie, 1990 (reprinted 1992). 138 Article. 12(5) of the draft "Verfassung der Deutschen Demokratische Republik" submitted to the first freely elected GDR parliament on 4 April 1990. Quoted in the Fore ward to Komitee fur Grundrechte und Demokratie (n. 137) 7 (emphasis added). 139 Komitee fur Grundrechte und Demokratie (eds.), Lebenslange Freiheitsstrafe: Ihr geltendes Konzept, ihre Praxis, ihre Begrundung,(First Public Hearing 14 to 16 May 1993), Sensbachtal: Komitee fur Grundrechte und Demokratie, 1993. 140 Komitee fur Grundrechte und Demokratie (eds.), Staatliches Gewaltmonopol, burgerliche Sicherheit, lebenslange und zeitige Freiheitsstrafe,(Second Public Hearing 4 to 6 March 1994), Sensbachtal: Komitee fur Grundrechte und Demokratie, 1994. 141 Komitee fur Grundrechte und Demokratie, Manifest: Die Abschaffung der lebenslangen Freiheitsstrafe und die Zuruckdrangung der zeitigen Freiheitsstrafen - Auf dem Wege zu gewaltfreien Konfliktlosungen, Cologne: Komitee fur Grundrechte und Demokratie, 1994. 142 Frankfurter Rundschau, "Klinger will 'lebenslang' streichen", 29 March 1996, 4; Die Tageszeitung, "Faire Chance fur Lebenslangliche", 29 March 1996, 5. The Minister of Justice's call was supported by two expert opinions: from Professor Bernd-Rudiger Sonnen who argued for a maximum sentence of 21 years on jurisprudential grounds; and from Professor Hartmut-Michael Weber who claimed, based on a survey of 156

Germany (Unlike the USA, however, sentencing law in Germany is made at federal level with the individual states responsible only for the implementation of sentences.) The most prominent spokesman for the abolitionist groups has been Hartmut-Michael Weber, who in 1999 synthesised the various arguments presented by those opposed to life imprisonment in a magisterial study entitled, The Abolition of Life Imprisonment; for an Achievement of the Constitutional Claim.143 As the title of his book suggests, he has sought to develop a rigorous response to the constitutional justifications for life imprisonment that have been advanced by the Federal Constitutional Court in particular. A summary of his main arguments reveals the essence of the ideas of the German movement opposed to life imprisonment. The point of departure for Weber's analysis of life imprisonment, like that of the State Court in Verden,144 is article 1(1) of the Grundgesetz, which provides: "Human dignity is inviolable. To respect and protect it is the duty of all state authority." In German constitutional law this basic norm informs all other rights. In fact, the Constitution contains no specific prohibition of cruel, inhuman or degrading punishment. Instead, it is deduced (uncontroversially) from the constitutional protection of human dignity.145 Weber uses the human dignity norm to take issue directly with the finding of the Federal Constitutional Court of 1977, that the evidence available then did not show that life imprisonment, enforced in the manner prescribed by German law, necessarily led to irreparable damage that infringed the constitutionally protected right to human dignity.146 In painstaking detail he analyses both the expert testimony considered by the Court and alternative information that is now available on the effects of imprisonment on prisoners generally and on lifers in particular.147 His conclusion is that lengthy terms of imprisonment often infringe human dignity to a constitutionally unacceptable extent (thus leaving open the possibility of extending the constitutional critique beyond lifers). Two aspects of life imprisonment, its indeterminacy and the variations in the regimes to which lifers are subject, make it particularly destructive of human dignity and also explain why, on the basis of narrow psychological testing, not all lifers can be shown to have been damaged by their imprisonment.148 Both of these aspects are unacceptable, Weber emphasises. In fulfilment of the constitutional duty to protect human dignity the requirement of specificity in the exercise of state authority (the Bestimmtheitsgebot} requires not only that the term of the punishment must be determinable but also that its effects must be calculable.149

143 144

European countries that had abolished life imprisonment compared to those that had not, that the life sentence was no more of a deterrent than a long determinate prison term. Weber (n. 7). See section 4 above. See Chapter 1. Weber (n. 7) 82. Ibid., 88-102. Ibid., 106. Ibid., 123. 157

Chapter 4 Weber is equally harsh on the substantive law that provides for the imposition of life imprisonment. His devastating analysis of the definition of murder in German law150 builds on the considerable body of critical German scholarship on the subject. He shows again how artificial is the distinction between murder and other culpable forms of homicide and how impossible it is to draw with any precision. German law defines a 'murderer' as someone who kills in a uniquely reprehensible way. All other criminal definitions, including those of other forms of homicide, define the offence rather than the offender. Weber makes much of the point that the 'murderer' is singled out as a bogeyman and the only one subject to mandatory life imprisonment.151 Of more general application is Weber's trenchant critique of the traditional justifications for punishment, whether viewed individually or combined in the so-called Vereinigungstheorie, that were used by the Federal Constitutional Court. The Court mentioned the incapacitation of the dangerous (negative special prevention) as a justification of life imprisonment and a factor to be considered when evaluating the release of a lifer.152 Weber argues that the implicit but manifestly false diagnosis that all murderers are dangerous directly affects their personality rights153 and results in a disproportionately severe intervention by the State.154 He also considers the empirical literature on dangerousness in considerable detail and concludes that the danger of false positives is so severe that to base a life sentence on a finding of dangerousness infringes the human dignity of offenders as well as their rights to freedom.155 'Positive special prevention' is given similarly short shrift.156 This is a particularly bold critique because the positive constitutional right of offenders to be offered the opportunity to resocialize themselves, which the Federal Constitutional Court had deduced from the right to human dignity and to development of one's personality, coupled with the constitutional ideal of the Sozialstaat, has been widely hailed as conferring additional rights on prisoners.157 In the 1977 life imprisonment case the Court confirmed its earlier decision and used the prisoners' right to resocialization to find that provisions for the release of those sentenced to life imprisonment had to be structured in such a way that offenders retained a reasonable possibility of being considered for release. This offered life sentence prisoners a procedural guarantee that they did not have before. Weber, however, does not accept the view that the focus on resocialization is a positive development in the context of life imprisonment. He argues that underlying the 150 151

152 153 154 155 156 157

Ibid., 123-164. See also Monika Frommel, "Wieso gelingt es nicht, die allgemein fur reformbedurftig angesehenen Totungsdelikte zu novellieren?" in Hartmut-Michael Weber and Sebastian Scheerer (eds.), Leben ohne Lebenslanglich Gegen die lebenslange Freiheitsstrafe, Bielefeld: AJZ, 1988, 69. See section 4 above. Cf. art 2(1) of the Grundgesetz. Weber (n. 7) 164-167. Ibid., 168-184. Ibid., 186-199. See also Edgardo Rotman, "Do Criminal Offenders Have a Constitutional Right to Rehabilitation?", (1986) 77 Journal of Criminal Law and Criminology, 1023.

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Germany notion of the prison that facilitates resocialization is a narrower notion of treatment, which coerces lifers into participating, on pain of losing access to relaxations of the prison regime or of being considered for release.158 In his view, this is a form of coerced treatment, which is doubly undesirable because of the wide discretionary powers that it gives to the prison authorities in practice.159 'Negative general prevention' (deterrence) is also dismissed by Weber160 and other abolitionists. The classic objection that it reduces the offender to a mere instrument of a state strategy to reduce crime is raised. Moreover, it is claimed that there is not sufficient evidence that life imprisonment is a deterrent to justify the drastic curtailment of the offender's right to liberty that it inevitably entails. Even the general populace suffers when the life sentence is used as deterrent. It is, in Weber's descriptive phrase, a form of allgemeine Zwangserziehung - of general coercive education - that underestimates the sense of personal responsibility of adult citizens.161 'Positive general prevention' is one justification for punishment that Weber treats with more diffidence.162 He recognises that the criminal law does have the function of strengthening social norms. However, following Sebastian Scheerer,163 another German scholar who has played an active part in the abolitionist movement, Weber distinguishes between authoritarian-stateist and liberal-democratic forms of positive general prevention. The former emphasises the inviolability of the legal order as a whole. It would hold that strengthening the unquestioning acceptance of legal authority would protect the right to life. The authoritarian protection of the legal order in this sense is, in Weber's view, what underlies the support that the Federal Constitutional Court derived from this principle for life imprisonment. In contrast, a less harsh but proportionate punishment would both signal that the right to life was protected and also indicate that the criminal law itself only imposed punishments that recognised the essential humanity of offenders.164 It is this latter, liberal-democratic form of positive general prevention that Weber favours and on which he draws for his argument that positive general prevention properly understood does not support life imprisonment but a shorter, fixed-term sentence that poses less of a threat to the personal integrity of the offender.165

158 159 160 161 162 163

164 165

Weber (n. 7) 188-190. Ibid., 191-194. Ibid., 200-214. Ibid., 214. Ibid., 221-224. Sebastian Scheerer, "Die Abschaffung der lebenslange Freiheitsstrafe. Ein Vorschlag" in Hartmut-Michael Weber and Sebastian Scheerer (eds.), Leben ohne Lebenslanglich. Gegen die Freiheitsstrafe, Bielefeld: AJZ, 1988, 125-139. See in this regard also the comment of Winfried Hassemer "Zur 'Integrationspravention", in Komitee fur Grundrechte und Demokratie (n. 137) 137-138. See also Bernhard Haffke, "Die 'guten Grunde' fur die lebenslange Freiheitsstrafe - und was davon ubrig bleibt" in Werner Nickolai and Richard Reindl (eds.), Lebenslanglich: Zur Diskussion um die Abschaffung der lebenslangen Freiheitsstrafe, Freiburg: Lambertus, 1993, 60. 159

Chapter 4 Finally, Weber deals with the retributive and expiatory theories of punishment,166 which have also been recognised by the Federal Constitutional Court as justifications for the imposition of life imprisonment. Here too, he distinguishes between an unbridled retributive approach and a more limited form of retribution that would be compatible with a fixed-term sentence to be implemented under strictly defined conditions. Weber demonstrates that the former form of retribution has been applied in Germany with unacceptable consequences, not only for the justification of the sentence of life imprisonment but also for the manner in which it is applied. On this basis he adds his voice to the widespread criticism of the 1983 ruling of the Federal Constitutional Court in which a majority of the Court accepted that the fact that an offence had been particularly heinous could be considered as an additional factor when deciding whether lifers who qualified for home leave in terms of all the criteria set by the Prison Act should be granted such leave. On the same grounds Weber is scathingly critical of the most recent major decision of the Federal Constitutional Court on the release of persons sentenced to life imprisonment: the 1992 decision in which the Court sought to find a way to have the 'particularly serious guilt' of the offender to be a factor to be taken into account again many years after the life sentence had been imposed, that is, when after 15 years the possible release of the lifer is considered for the first time. This shows clearly, Weber argues, that the legislative attempt to meet the requirement that lifers should have a realistic chance of release if they had been 'resocialized', was undermined by the continued emphasis on retribution and an excessive concern for the sentence to reflect the expiation of guilt by the offender. Implicit in Weber's very extensive critique of the theories of punishment is his observation that to a very large extent they are grounded in an absolutist view of the State. Scepticism about a view that would recognise that the State has a monopoly of penal authority that it can enforce at almost any cost, is a constant theme in the writings of those opposed to life imprisonment.167 This authority, Weber argues, is reinforced by simplistic media portrayals of violence, which imply that only harsh, state-sanctioned punishments, with life imprisonment as their key piece, can maintain order. In German legal history it was present in the writings of Von Liszt, who set no limits for dealing with habitual offenders. This approach, although not the writings of Von Liszt personally, was adopted by the Nazis. More controversially Weber argues that modern German criminal law that follows the so-called Vereinigungstheorie, which seeks to combine various justifications for punishment, retains some of the absolutist justifications that could become dominant again in a time of crisis. In a section of the book dealing directly with the state and punishment, Weber contrasts this approach to a view of society that would limit punishment by recognising at all times the human rights of both offenders and victims.168 Weber argues that such rights limit the absolute power of the state to 166 167 168

Weber (n. 7) 224-234. See, for example, Komitee fur Grundrechte und Demokratie, (n. 141) 19. Weber (n. 7) 274-374.

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Germany sanction. He recognises, like other modern penal theorists,169 that moderate forms of retributive penal sanctions do have a function in reaffirming social values but argues that these sanctions can only fulfil this positive role if they are limited to sanctions that recognise the essential humanity of those at whom they are aimed.170 What Weber does is to take the further and carefully considered specific step of arguing that a state that does not claim absolute power over its citizens therefore cannot have the sentence of life imprisonment in its arsenal of sanctions. Towards the end of his book Weber makes the specific proposal that the sanction of life imprisonment for murder be replaced by imprisonment of not more than 15 years for the carefully defined, most serious forms of homicide.171 In substance, the proposal is not radically different to similar suggestions put forward by German academic criminal lawyers over many years.172 In this context though, it is presented as part of wider challenge to produce a penal system that will not exercise absolute power over any offender. Only, in this way, Weber claims, can it be ensured that the human dignity of the offender that the Constitutional Court purported to recognise in its 1977 judgment will in fact be adequately protected. 8. RESURGENT PUNITIVENESS? In practice, there is little sign of the proposals, most recently repeated by Weber, to replace the life sentence with a fixed term being adopted. Indeed if one examines the various publications on recent meetings in which activists opposed to life imprisonment tried to engage with politicians of the main-stream political parties one notes a degree of impatience on the part of the latter. Their fundamental populism was encapsulated by the angry words of a Social-Democrat Member of the Federal Parliament at a meeting of the pro-abolitionist Komitee fur Grundrechte und Demokratie, where he commented that he considered the views of the rabbit breeders society in his constituency of more significance than the "exotic" group that had called the meeting in order to widen the debate about life imprisonment.173 Populist politics began to focus on aspects of life imprisonment in the wake of the moral panic that swept across continental western Europe in the wake of the Belgian

See, for example, Nicola Lacey, State Punishment, New York: Routledge, 1989, 193-195. See also Chapter 6 below. See also Wolff-Dieter Narr, "Die Tradition der Menschenrechte - Meschenwiirde und die lebenslange Freiheitsstrafe", in Komitee fur Grundrechte und Demokratie (n. 137) 136. Weber (n. 7) 420-428. See, in particular, the major study by Laubenthal (n. 21), which lists a number of different scholars who have supported the abolition of life sentences (at 275). Laubenthal himself would replace the life sentence with a determinate sentence of between 15 and 20 years, but would make provision for additional second track measures to allow for the detention beyond that time of offenders who were still dangerous: Laubenthal (ibid.) 274-280. Komitee fur Grundrechte und Demokratie (n. 137) 221. 161

Chapter 4 Dutroux case174 in 1996. In Germany its impact was reflected most strongly in revived interest in the use of preventive detention. This initiative took commentators by surprise, as preventive detention had largely disappeared from the public debate about penal policy.175 Used less than 50 times a year it was thought to be in decline. However, a media-driven campaign following the rape and murder of a young woman in late 1996 by a man out on probation following a previous conviction for murder led to a campaign for legislative intervention with a specific incapacitatory focus.176 The new law, which was passed in 1998,177 amended the existing measures in a number of subtle ways by making it easier to impose preventive detention, while also making it harder to release persons subject to it.178 The Penal Code has long made it mandatory for preventive detention to be imposed if an offender has two previous convictions for which prison sentences of two years or more had been imposed and where that offender is found to have a propensity to commit major offences179 that are a danger to society.180 A court may now also impose preventive detention on an offender with such a propensity, who is convicted of any two of a long list of offences, if that offender has such a propensity, even if the offender has no previous convictions.181 Of particular significance is that the absolute limit of ten years on preventive detention imposed for the first time has been removed, thus bringing preventive detention even closer to life imprisonment.182 The new requirement is that after ten years the offender must be released only if there is no danger that he will commit a major offence that will seriously damage the victim psychologically or physically. The effect of these requirements is that more emphasis than ever is placed on the findings of experts, in practice psychiatrists, who must advise the court on the proclivities of the offender. The final decision remains that of the courts which, although they have hitherto adopted a restrictive practice, have defined the notion of propensity183 fairly widely but have not found that there need be a specific cause for such a propensity.184 These changes in the legislation have led to a renewed critique of the institution of preventive detention in Germany. It has been pointed out again that, although preventive 174

175 176 177 178 179 180 181 182 183 184

Cf. Sonja Snacken, "Belgium" in Dirk van Zyl Smit and Frieder Dunkel (eds.), Imprisonment Today and Tomorrow: International Perspectives on Prisoners' Rights and Prison Conditions, 2nd ed., The Hague: Kluwer Law International, 2001, 32-33. Jorg Kinzig, "Schrankenlose Sicherheit? - Das Bundesverfassungsgericht vor der Entscheidung uber die Geltung des Ruckwerkungsverbots im MaBregelrecht", (2000) 20 Strafverteidiger, 330. Weber (n. 7) 442. Gesetz zur Bekampfung von Sexualdelikten und anderen gefahrlichen Straftaten vom 26.1.98 BGB1. 1998, parti, n 6, of 30 January 1998,160. See the new versions of §§ 66 III and 67d of the Penal Code. That is, offences that seriously damage the victim psychologically or physically or which cause serious economic loss. §66(1) of the Penal Code. § 66 (3) of the Penal Code as amended. §§ 67a and 67d of the Penal Code, as amended. "ein Hang". Kinzig (n. 16)53-55.

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Germany detention forms part of the criminal justice system, as its imposition follows a criminal conviction, the period of preventive detention is not restricted by the constitutional requirement that the measure be proportionate to the Schuld of the offender in the same way as punishment must be.185 It is true that the Federal Constitutional Court has emphasised that in imposing and allowing preventive detention to continue, courts must be conscious of the general constitutional requirement of proportionality between the liberty interest of the offender and the need to protect the public,186 but this is a lesser standard than that set by the criminal law and one that leaves the offender more vulnerable. Up to 1998, the absence of wider criticism of preventive detention had been based on the fact that the formal requirements that had to be met before preventive detention could be imposed were relatively strict and the courts considered very carefully before deciding that someone had the specified propensity to crime that was a danger to society. A moderate critique of the new legislation advanced by Schoch concedes that the safeguards against abuse of the preventive detention mechanism have been reduced by the changes, but argues that some of them are justified.187 Schoch holds that where someone has committed two very serious offences that reveal strong sadistic tendencies for example, it may be sufficient to form the basis for considering whether he has a propensity for offending to a degree that requires a preventive detention measure. However, Schoch concedes that the list of offences that now trigger a mandatory inquiry into the propensities of an offender who has no previous convictions, is too broad, as for the lesser offences a propensity to dangerous crime will not be so easily established in the absence of previous convictions. He continues, however, to trust that the courts will ensure that the measure is not used too widely. Others are less trusting of the courts. Recently, Weber and Reindl have reminded of the Nazi abuse of preventive detention and argued that the current provision for indefinite preventive detention poses such a threat to individual liberty that it should be abolished entirely.188 The core of their argument is that appropriate assessments cannot be made of the propensity of offenders to commit future crimes. The fact that they nevertheless do so gives the State an unrestricted power that infringes the principle of legality. Such an argument was of course applicable to preventive detention as it existed before 1998 too, but becomes more powerful if the courts have wider powers to consider dangerousness. There appears to be no likelihood that Weber and Reindl will be successful in the short term. On the contrary, the most recent development in preventive detention in Germany has come from the Federal State of Baden-Wiirttemberg, which has introduced an additional form of preventive detention because it argues that Federal preventive 185 186 187 188

Cf. BVerfGE91, I at 4. Ibid. Heinz Schoch, "Das Gesetz zur Bekampfung von Sexualdelikten und anderen gefa'hrlichen Straftaten vom 26.1.98", (1998) 51 Neue Juristische Wochenschrift, 1257. Harmut-Michael Weber and Richard Reindl, "Sicherungsverwahrung: Argumente zur Abschaffung eines umstrittenen Rechtsinstituts", (2001) 13(1) Neue Kriminalpolitik, 16. 163

Chapter 4 detention law is still too soft.189 It takes a curious form. The police legislation in the State has been amended to provide that if an offender is sentenced to a term of imprisonment and it subsequently appears that the offender presents a serious risk to the life, bodily integrity, the personal freedom or the sexual autonomy of others, particularly because he refuses to take part in a therapeutic programme, the prison director may apply to the court to have preventive detention imposed on the recalcitrant offender. The legislation is likely to be subject to strong constitutional attack, not least on the basis that the law is beyond the competence of an individual Land, as preventive detention is covered by the Federal Penal Code.190 Nevertheless, it indicates the degree of political support for indefinite detention as a means to incapacitate potentially dangerous offenders. The changes in the law relating to preventive detention are complemented by the Sixth General Criminal Law Reform Act of 1998.191 It increased the range of offences for which life imprisonment may be imposed by extending it to negligent manslaughter committed in the context of the sexual abuse of children, rape and the sexual abuse of someone who cannot resist, as well as for causing explosions.192 Although the genesis of this Act predated the moral panic of 1996, it was promoted as a direct response to the heightened perceptions of the threat of crime. That this perception was based on, at best, dubious statistical evidence of an increase in crimes of sexual violence played little role in the introduction of the new legislation.l93 9. CONCLUSION It is too early to say what impact the new laws will have in practice. It may be relatively slight, as life sentences have hitherto hardly ever been imposed for crimes other than murder. Moreover, the constitutionality of the retrospective extension of preventive measures beyond ten years is currently being considered by the Federal Constitutional Court.194 Scholars also still argue that findings of continued dangerousness should be made with great circumspection as periods of preventive detention get longer.195 The latest developments are significant as they demonstrate that the abolition of life imprisonment is unlikely. Even the lesser proposals of changes to reduce the frequency of its applicability by making it a discretionary sentence for murder, which commentators

189 190

191 192 193 194 195

LT-Dr 12/2037 (Baden-Wurttemberg). Jorg Kinzig, "Als Bundesrecht gescheitert - als Landesrecht zulassig?", (2001) 54 Neue Juristiche Wochenschrift, 1455; Frieder Dunkel and Angela Kunkat, "Der Staat als Sicherheitsrisiko?", (2001) 13(3) Neue Kriminalpolitik, 16. Sechstes Gesetz zur Reform des Strafrechts vom 26.1.1998, BGB1. 1998, parti, n 6, of 30 January 1998,164. See the new versions of §§ 176b, 178, 179 and 308 of the Penal Code. This last proposition was subject to some debate, see Henning Rosenau, "Tendenzen und Grunde der Reform des Sexualstrafrechts", (1999) 19 Strafverteidiger, 388. Kinzig (n. 175). See in general, Hye-Jong Kim, Gefahrtichkeitsprognose im Maflregelrecht des StGB - unter Berucksichtigung der Verhaltnismqfligkeit, (Ph. D. Law Thesis, University of Trier), Gottingen: Cuvillier, 2000.

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Germany have suggested have a more realistic chance of acceptance,196 do not appear to be making any headway. The discussion on the definition of murder has not delivered any changes and the Rechtsfolgenlosung, which theoretically allows a lesser sentence to be imposed in exceptional circumstances following a conviction of murder, is not being applied any more, as very few cases were deemed to meet the strict requirements of this exception.197 The current state of affairs should not distract attention from the fact that life imprisonment in Germany has largely remained restricted to the most serious of crimes; that is murder committed by adults. Juveniles and, in practice, young adults198 remain excluded from its ambit, as do cumulative sentences. This has allowed the debate to remain focused on the fundamental question of the appropriateness of life imprisonment as an ultimate penalty. Thus Weber in his encyclopaedic critique of the current system could concentrate on life imprisonment for murder, confident in the expectation that if this could be changed other forms of life imprisonment would follow. The 1977 decision of the Federal Constitutional Court remains pathbreaking in that it addressed this question directly. It is also significant for having laid down constitutionally derived principles about the limits of the class of offence for which life imprisonment could be imposed, the manner in which life sentences should be implemented, and the rules that must be applied to the consideration of the release of persons serving life sentences. Although these principles have been severely criticised they have remained intact. This has been confirmed by the recent decision of the Federal Constitutional Court that all prisoners, specifically including those serving life sentences, have a right to be offered the opportunity for resocialization.199 The Court held that in practice this means that where such prisoners are compelled to work as part of their resocialization they are entitled as a matter of constitutional right to adequate compensation. As one of the plaintiffs was a prisoner serving a life sentence, this judgment was a specific endorsement of the rights of lifers to be resocialized and to retain other residual rights, in this instance appropriate compensation for the work they do.200 In other recent decisions the Federal Constitutional Court re-emphasised that the statutory provisions relating to relaxations of the prison regime applied to lifers too.201 The constitutional requirement of resocialization meant that systematic attempts should be made to determine whether lifers would eventually be able to lead crime-free lives in society outside prison. Statutory provision for furloughs and day parole could not be

Walter (n. 132)70. Ibid. See text at notes 9 and 10 above. Decision of the Federal Constitutional Court of 1 July 1998, reproduced in (1998) 51 Neue Juristische Wochenschrift, 3337-47. Dirk van Zyl Smit, "Anchoring the Treatment of Prisoners in a Rights Discourse: the Example of Rewards for Prison Labour in German Law", (1999) 116 South African Law Journal, 613. See the decisions of the Federal Constitutional Court reported in (1998) 47 Zeitschrift fur Strafvollzug und Straffalligenhilfe, 180 and the (1998) 51 Neue Juristiche Wochenschrift, 1133. 165

Chapter 4 ignored.202 On the contrary, the longer the period of time a prisoner serving a life sentence had already served, the more important these relaxations became, and the stronger the claim of the prisoner to them.203 These principles continue to provide the basis for further developments, not only legislative intervention to ensure that the law relating to release meets constitutional criteria and decisions of the Constitutional Court to interpret the legislation, but also the entry point for a wider scholarly and public debate. The terms of the debate may be specifically German204 in that reference is made primarily to the German constitutional basic value of human dignity and the related concept of the Rechtstaat but, as shall be apparent in the concluding chapter, these ideas are easily linked to similar norms in international human rights law and in other legal systems.

202

Section 13(3) of the 1976 Prison Act restricts the granting of furloughs to lifers who have served at least ten years of their sentences. The Federal Constitutional Court has now gone as far as interpreting this to be an indicator that the legislator regards the danger of a lifer fleeing as a risk that may have to be accepted when deciding whether to grant him a furlough in the period when he has served between ten and 15 years, that is, before he is considered for release for the first time, (1998) 47 Zeitschrift fur Strafvollzug and Straffdlligenhilfe, 180. 203 The claim is based both on the right to resocialization and to the residual right to freedom contained in article 2(2) of the Grundgesetz, that becomes relatively more important as the offender continues to serve the sentence: Federal Constitutional Court in (1998) 51 Neue Jurisitiche Wochenschrift, 1133. 204 Grasberger (n. 33) 73 notes that in the seminal 1977 decision of the Federal Constitutional Court international standards and comparative analysis did not influence the outcome, although in law there was no reason why they could not have been taken into consideration. She suggests that the reason was that such standards were not sufficiently developed to have a significant influence.

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CHAPTER 5

INTERNATIONAL CRIMINAL JUSTICE

1. THE CURRENT POSITION Crimes against international law include the most heinous conduct imaginable. There can be little disagreement that someone convicted of genocide or of other crimes against humanity should face severe punishment and that the most serious offences of this kind should be penalised with the ultimate penalty allowed by international law. Until relatively recently, however, there was little systematic inquiry into what the penalty should be for such crimes. The revival of international prosecutions of crimes against humanity as a result of the establishment of the international criminal tribunals for the former Yugoslavia and Rwanda, and the drafting of a statute for a permanent international criminal court have changed this. The current position is that there are only five persons under sentence of life imprisonment imposed by an international body. They were sentenced by the International Criminal Tribunal for Rwanda.1 Nevertheless, the impact of international criminal law on the debate about life imprisonment has been considerable. For both the Rwanda Tribunal and, somewhat controversially, the Yugoslavia Tribunal, life imprisonment is the heaviest sentence that may be imposed. Moreover, the Statute of Rome, the statute for the proposed International Criminal Court also provides that, "when justified by the extreme gravity of the crime and the individual circumstances of the convicted person", life imprisonment may be imposed.2 These provisions have come about in a climate in which it was regarded as imperative that other rules of international law, including the principles of international human rights law, which limit the punishment that may be imposed, be taken into account. As will become apparent though, both the establishment of life imprisonment as the ultimate penalty that may be imposed for crimes against humanity by these bodies and the rules that would govern its imposition and the implementation have not been uncontroversial. These debates and the details of their outcome are the subject of this chapter. 2. PUNISHMENT IN INTERNATIONAL LAW It is often said that modern human rights law emerged only in the post World War II period. It took some time, however, before the principles of human rights law were even See section 5(c) below. Article 77.1(b) of the Rome Statute of the International Criminal Court, U.N. Doc. A/Conf. 183/9 (1998). 167

Chapter 5 considered in the discussions of appropriate punishments at the international level. After World War II the Nuremberg Tribunal, the first major modern body to apply international law against war crimes, crimes against humanity and crimes against peace, could impose the death penalty or any other punishment determined by it to be just.3 In the trial of the major war criminals this Tribunal sentenced 12 of the accused to death, three to life imprisonment and four to fixed terms of imprisonment.4 All three these forms of punishment were also imposed in subsequent trials by allied military tribunals in Germany as well as by the International Military Tribunal for the Far East, which all operated under similar sentencing provisions to those applicable at Nuremberg.5 At the time of these trials, the body of international human rights law that could be used to evaluate the application of international criminal law was in its infancy. The accused, generally speaking, did not argue that their human rights were being infringed by the proceedings at all. One exception was the claim by the accused persons that they were being tried in terms of laws that operated retrospectively.6 The principle that the retrospective creation of crimes and punishments is unacceptable had been recognised in criminal law since the late Middle Ages and expressed in the phrases, nullum crimen sine lege, nulla poena sine lege. It was also a key element of the principle of legality in international human rights law.7 In the event, the charge of retrospectivity was firmly dismissed by the various tribunals. Customary international law, together with instruments such as the regulations of the Fourth Hague Convention of 1907,8 were held to have provided the underpinnings for the definitions of the crimes with which the accused at Nuremberg were charged.9 The death penalty, as well as other 'lesser' penalties including life imprisonment, were regarded on grounds of customary international law to be properly applicable to offences against the law of war and, by extension, to the other offences as well.10 Although dismissed by the post World War II tribunals, the charge that new law was being created and imposed with retrospective effect was potentially damaging to the legitimacy of the whole enterprise of enforcing international criminal law, since a prohibition against retrospective law, particularly in criminal matters, was a core element Article 25 of the Charter of the International Military Tribunal 1945 (Nuremberg Charter), United Nations Treaty Series, Vol. 82, 279. See Roger S. Clark, "Nuremberg and Tokyo in Contemporary Perspective", in Timothy L. H. McCormack and Gerry J. Simpson, (eds.), The Law of War Crimes, The Hague: Kluwer Law International, 1997, 171-87 and the secondary literature cited there. Ibid, at 172; William A. Schabas, "War Crimes, Crimes against Humanity and the Death Penalty", (1997) 60 Albany Law Review, 737; Telford Taylor, The Anatomy of the Nuremberg Trials, Boston: Little, Brown and co., 1992. Taylor (n. 4). Schabas (n. 4) 734. See in general M. Cherif Bassiouni, Crimes Against Humanity In International Criminal Law, Dordrecht: M. Nijhoff Publishers, 1992, 87-146. See International Convention Respecting the Laws and Customs of War by Land, Oct. 18, 1907, 36 Stat. 2277,2295. Schabas (n. 4) 735. Ibid. 168

International Criminal Justice of international legality. The debate itself could be avoided if the offences, the structure and procedures of the tribunals that could try them, and the penalties that could be imposed on offenders, were clearly spelt out in a treaty or other enactment which was uncontroversially accepted as laying down international law in this area before it was necessary to enforce it.11 Recognition of this reality was easier than doing something about it. In the post World War II period, efforts were made to reform some of the definitions of the offences and to move toward the creation of a permanent international criminal tribunal. Some progress was made in the late 1940s with the adoption of the Convention for the Prevention and Punishment of Genocide;12 but neither this Convention, nor some early attempts that were made in the 1950s to draw up a code of offences against peace and the security of mankind and to establish an international criminal tribunal,13 grasped the nettle of specifying the penalties that might be appropriate in terms of international criminal law.14 The matter was largely shelved until the early 1980s, when the International Law Commission again began work on a draft Code of Offences against Peace and the Security of Mankind.15 Particularly after the General Assembly of the United Nations asked the Commission in 1989 also to consider the creation of a permanent International Criminal Court, attention began to be paid to the question of appropriate punishments.16 Relatively little may have been done for almost 40 years after the end of World War II to develop international criminal law and the punishments that could be imposed in terms of it, but during the same period there were important advances in international human rights law. The impact of international human rights law was to be felt in many fields. Of particular interest to the current inquiry was the strong emphasis that it placed on new interpretations of established principles relating to the prohibition of cruel, inhuman or degrading punishments, the underlying norm of human dignity and the requirements of legality and due process. At the international level the most prominent general instruments in which these principles were asserted were the Universal Declaration of Human Rights17 and the International Covenant on Civil and Political Rights.18 They

See the comments on the importance of rules that meet the standards not only of international law but also the standards normally set in national criminal law systems, made by Hans Corell, "Nuremberg and the Development of an International Criminal Court", (1995) 149 Military Law Review, 93-95. Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277 (entered into force Jan. 12, 1951). For a summary of the early legislative history, see Rosemary Rayfuse, "The Draft Code of Crimes Against the Peace and Security of Mankind: Eating Disorders at the International Law Commission", (1997) 8 Criminal Law Forum, 44-46. Schabas (n. 4) 742-43. Rayfuse (n. 13)46. Schabas (n. 4) 744; G.A. Res. 44/39, U.N. GAOR, 44th Sess., 72d plen. mtg. at 2, U.N. Doc. A/RES/44/39 (1990). G.A. Res. 217A (III), 10 December 1948, 3 U.N. GAOR Supp. (No. 11A) 71, U.N. Doc. A/810, 7 (1948). G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) 52, U.N. Doc. A/6316 (1967). 169

Chapter 5 were complemented by a number of new regional human rights instruments19 and specialist conventions20 that with different words and emphases embodied the same principles. Many new national constitutions of the post World War II period also incorporated bills of rights that referred to these principles.21 As noted in Chapter 1, the interpretation of these various instruments by scholars, international tribunals and national courts all contributed to the emergence of an international jurisprudence on punishment. This could not remain without impact on the punishments applicable in international law. The most noticeable impact of these developments at the international level was the gradual rejection of the death penalty as being contrary to international human rights law. William Schabas, the leading scholar and chronicler of this shift, has carefully analysed this evolutionary process and shown how the case for abolition of the death penalty, which had been argued at least since the Enlightenment, was reinforced and developed by general human rights norms and changes at the national level.22 Gradually, international human rights norms on legality, acceptable punishments and, with particular relevance to the death penalty, the right to life, enshrined in instruments such as the Universal Declaration of Human Rights,23 were given a wider meaning. These changes were reflected in international instruments, most importantly article 6 of the International Covenant on Civil and Political Rights that restricted the use of the death penalty and later the Second Optional Protocol to the Covenant that called for the abolition of the death penalty.24 The result was that when the International Law Commission came to debate the penalties that could be imposed by a prospective international criminal court, the death penalty was regarded as unacceptable in so many major countries that its imposition was practically out of the question.

See in particular the European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222; The African Charter on Human and Peoples' Rights, adopted June 27, 1981 OAU Doc. CAB/LEG/ 67/3 rev. 5, entered into force Oct. 21, 1986; The American Convention on Human Rights, Nov. 22, 1969, O.A.S. Treaty series No. 36 at 1. See, e.g., The International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, 10 December 1984,39 U.N. GAOR Supp. (No. 51) 197, U.N. Doc. E/CN.4/1984/72; The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), 27 International Legal Material, 1152 (1988). M. Cherif Bassiouni, "Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions", (1993) 3 Duke Journal for Comparative and International Law, 235. William A. Schabas, The Abolition of the Death Penalty In International Law, 2nd ed., Cambridge: Cambridge University Press, 1997. See Universal Declaration of Human Rights (n. 17), art. 3, ("Every one has the right to life, liberty and security of the person."). Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty, G.A. Res. 44/128, 15 December 1989, U.N. GAOR (44th sess.). 170

International Criminal Justice 3. THE INTERNATIONAL LAW COMMISSION The International Law Commission is a particularly interesting bellwether of the shift in the approach to punishment at the international level. Although technically it is a subsidiary organ of the General Assembly of the United Nations, its members are experts drawn from various countries throughout the world. As Commissioners, they do not represent their countries of origin but must develop new international legal instruments in the light of emerging principles of international law.25 Nevertheless, particularly on a question such as the criteria for evaluating what forms of punishment are acceptable, where international law is unsettled, they bring with them ideas and assumptions from their own national legal cultures. When the International Law Commission again began to consider a draft Code of Crimes against the Peace and Security of Mankind the complementary question of appropriate penalties again became relevant. Penalties were not addressed immediately but in 1990 the Special Rapporteur, Mr. Doudou Thaim of Senegal, put forward a number of different proposals for possible penal provisions.26 They ranged from a provision that merely said that penalties must be "fair" but did not provide for any penalty, thus potentially allowing the death penalty; through a provision that added to the requirement of fairness only that the death penalty should be excluded; to a positive proposal that various sentences including life imprisonment or prison terms could be imposed.27 These proposals were preliminary and did not elicit much debate. The discussion did confirm, however, that the death penalty was not likely to get majority support on the Commission. Noteworthy though, was the general objection advanced by Mr. Solari Tudela, a Commissioner from Peru, to both the death penalty and life imprisonment: "The American Convention on Human Rights leaned towards the elimination of the death penalty in prohibiting States parties which had abolished it from reestablishing it (art. 4, para. 3). That was why he rejected the version allowing the possibility of imposing the death penalty. Furthermore, under the American Convention, the prison term imposed must have as an essential aim the reform and social readaptation of the prisoner (art. 5, para. 6). In view of the inter-American system, he could therefore not approve of the version providing for life imprisonment, for that amounted to denying the possibility of social readaptation. Nor could he approve of the idea of a sentence of imprisonment for such a long

Christian Tomuschat, "ILC - International Law Commission" in Rudiger Wolfrum and Christiane Philipp (eds.), United Nations: Law, Policies and Practice, Vol 1, Munich: Beck; Dordrecht: Martinus Nijhoff, 1995,705-713. Eighth Report on the Draft Code of Crimes Against the Peace and Security of Mankind, [1990] 2(1) Yearbook of the International Law Commission, 27-39, para. 101, U.N. Doc. A/CN.4/430 and Add.l. Ibid. Ill

Chapter 5 period as to be comparable to life imprisonment. Accordingly, none of the three texts proposed by the Special Rapporteur satisfied his wishes."28 This comment set the stage for a remarkable debate about the life sentence in which the different points of departure on the subject were well represented. In 1991, in his Ninth Report on the Code, the Special Rapporteur drew the attention of the International Law Commission more fully to the issue of suitable penalties.29 He noted that in 1954 when the Commission had last considered penalties, it had deliberately left the question open because of the difficulty of arriving at any consensus.30 Mr. Thiam's 1991 Report, however, stressed at the outset that, notwithstanding certain difficulties, "[t]he principle nulla poena sine lege requires that provision be made for penalties in the draft Code".31 The Report proposed boldly that there should be a single penal provision covering all crimes against the peace and security of mankind. Such a provision should exclude the death penalty and make positive proposals in its place. The Special Rapporteur put forward the text for such a provision: "Any defendant found guilty of any of the crimes defined in this Code shall be sentenced to life imprisonment. If there are extenuating circumstances, the defendant shall be sentenced to imprisonment for a term of 10 to 20 years."32 Technically, the Ninth Report of the Special Rapporteur simply set the framework for the debate on the penal aspect of the draft Code of Crimes against the Peace and Security of Mankind at the 1991 meeting of the International Law Commission, but it is significant also for the way in which it confirmed the renewed importance of the principle of legality as applied to the need to specify penalties and signalled that the sentence of death had been ruled out. Both these principles continued to be debated, but within the Commission there was a majority for specifying the punishments clearly and against the death penalty. This majority continued to dominate on these issues in subsequent deliberations of the International Law Commission.33 The International Law Commission may have addressed the need for specificity of punishment and the move away from the death penalty, but were the Commissioners mindful of the need to test the penalties that were to be allowed against the standards of Summary Record of the 2157th Meeting, [1990] 1 Yearbook of the International Law Commission 51, para. 7, U.N. Doc. A/CN.4/SER.A/1990. Ninth Report on the Draft Code of Crimes Against the Peace and Security of Mankind, [1991] 2(1) Yearbook of the International Law Commission 37-44, U.N. Doc. A/CN.4/435 and Add. 1 [hereinafter Ninth Report]. Ibid, paras. 17-23. Ibid. para. 4. Ibid. para. 29. The text continued to provide: "[In addition, the defendant may, as appropriate, be sentenced to total or partial confiscation of stolen or misappropriated property. The Tribunal shall decide whether to entrust such property to a humanitarian organization.]" (square brackets in original). For an analysis of the work of the International Law Commission that focuses on its approach to the death penalty, see Schabas (n. 4) 742-56. 172

International Criminal Justice international human rights law? More specifically, was adequate attention paid to these standards in respect of the sentence of life imprisonment, the heaviest sentence that could be imposed, in the various proposals that refined the ideas put forward in 1991? There can be no doubt that at an early stage in the debate about which punishments should be allowed, the various experts involved recognised that life imprisonment was potentially problematic.34 Indeed, the commentary that the Special Rapporteur attached to the draft penal provision in his Ninth Report dealt primarily with this issue. There the Special Rapporteur attempted to ward off future criticism by arguing: "Despite the reservations concerning life imprisonment voiced by those who believe that it makes the prisoner's rehabilitation and reintegration into society impossible, it is difficult to imagine how the maximum penalty for crimes such as those in question could be imprisonment for a definite period of time, a sentence sometimes imposed for ordinary offences. Inasmuch as the death penalty has been ruled out, it seems difficult to rule out life imprisonment as well. ... [The second] paragraph, however, proposes an exception to the principle established in the first paragraph, in cases where pertinent extenuating circumstances make it more acceptable to impose a prison sentence for a definite period of time."35 This pre-emptive strike by the Special Rapporteur did not have the effect of dulling the debate about life imprisonment. At the discussion of his Report by the Commission in 1991 several members raised doubts about life imprisonment. The debate was so vigorous that at the end of it the Special Rapporteur amended his draft penal clause and proposed two further alternatives, both of which included life imprisonment only in square brackets, an indication that including it as a punishment was highly disputed. The substance of this debate is of considerable interest, for it is a rare reported example of arguments for and against life imprisonment being developed systematically in the context of international law. a) Arguments against life imprisonment A feature of the debate was that a considerable number of Commissioners declared their principled opposition to the penalty. Particularly prominent were Commissioners from South America. Three of the five Commissioners from that region expressed their opposition to life imprisonment while only one expressed any support. The views of the South American opponents of life imprisonment are well illustrated by the comments of Mr. Solari Tuleda from Peru: "Life imprisonment did not seem to be compatible with the Latin American legal system. The criterion adopted in the American Convention on Human Rights, for 34 35

Summary Record of the 2157th Meeting, (n. 28) 50. See Ninth Report, (n. 29) 40, paras. 30-31. 173

Chapter 5 instance, was that penalties should not only be correctional in nature but should also rehabilitate the convicted person so that he could resume his place in society. A more realistic penalty would be imprisonment for a minimum of 10 years and a maximum of 25 years, which was the longest term of imprisonment in many Latin American countries."36 This passage highlights two recurring themes in the opposition to life imprisonment, namely, the objection that it is not a competent penalty for even the most serious crimes in the domestic law of some States and, secondly, that it undermines the human rights of offenders by denying them the opportunity to rehabilitate themselves so that they can later live in society as free citizens. It is noticeable that the idea that life imprisonment may violate prisoners' human rights was also taken up by Commissioners from outside South America. Although their ideas are not fully developed, it appears that they may have had concerns about the human rights infringed by life imprisonment that went beyond the concern of the right to rehabilitation. Thus for example Commissioner Graefrath from the German Democratic Republic commented simply that he was "opposed to life imprisonment, which was inhuman and contrary to human rights. A 25year term of imprisonment should be the most severe penalty".37 Similarly Commissioner Njenga from Kenya commented: "Life imprisonment was unacceptable as the maximum sentence, for the objective was justice, not blind retribution. A life sentence imposed on an elderly person, without the possibility of remission, did little credit to the conscience of mankind, and in domestic systems the prerogative of mercy or parole was frequently exercised. Again, many countries had abandoned the life sentence on the ground that it infringed human rights."38

b) Arguments for life imprisonment Supporters of life imprisonment among the Commissioners who were opposed to the death penalty39 based their advocacy on three primary arguments: the need for an appropriately retributive punishment, general deterrence and the incapacitation of offenders. The first two of these were given expression by Mr. Illueca, a Commissioner from Panama, who argued that Summary Record of the 2212th Meeting, [1991] 1 Yearbook of the International Law Commission 34, para. 4, U.N. Doc. A/CN.4/SER.A/1991. See also the comments of Mr. Barboza from Argentina: Ibid., at 16, para. 20; and the comments of Mr. Rodriques from Brazil: Ibid, at 12 para. 21. Summary Record of the 2208th Meeting, [1991] 1 Yearbook of the International Law Commission 10, para. 10, U.N. Doc. A/CN.4/SER.A/1991. Summary Record of the 2210th Meeting, [1991] 1 Yearbook of the International Law Commission 26, para. 47, U.N. Doc. A/CN.4/SER.A/1991. In the discussion that follows the focus is exclusively on those who supported life imprisonment and who concurred in the judgment that the death penalty was not an acceptable or practicable option as a penalty to be imposed by an international tribunal. 174

International Criminal Justice "crimes against the peace and security of mankind called above all for the adoption of exemplary penalties which reflected the feeling of condemnation that such acts aroused in the international community and which also had a deterrent effect."40 Of particular interest is that Mr. Illueca relied on human rights norms not only for his rejection of the death penalty but also for his support for life imprisonment in the face of opposition to it from other Commissioners from Latin America. The latter penalty was required "in order to prevent [barbarous crimes] from being committed again and to protect human rights and fundamental freedoms".41 He noted that the international instruments, which made national statutes of limitation inapplicable to war crimes and crimes against humanity and which denied their perpetrators rights of asylum, were based on the same criteria of protecting human rights. Implicit in this argument is the idea that the exceptionally serious crimes that were involved here required life imprisonment as the exemplary penalty, even where it may be opposed for 'ordinary' crimes. In Mr. Illueca's words: "Any potential criminal [contemplating crimes against the peace and security of mankind] should realise that, while he might not actually have to suffer the death penalty, he would none the less be outlawed from society."42 The case for life imprisonment as an instrument of incapacitation was put by a Commissioner from Italy, Mr. Arangio-Ruiz, who argued that the death penalty was "plainly out of the question".43 He commented that he would be "less hesitant than some other members" about life imprisonment: "[H]e would find it difficult to contemplate the release, even after 20, 25 or 30 years, of a dictator of the type common around 1930, who had been guilty of aggression, genocide and other crimes of similar magnitude, or even the release of a major drug trafficker. Such people could not just be returned to society, as the English had soon realised in the 100 days following Napoleon Bonaparte's exile on the island of Elba. It was a question of fitting the punishment not only to the crime but also to the gravity of the danger, and of preventing a recurrence at all costs." 44 In addition to those Commissioners who supported life imprisonment in principle, a number of Commissioners supported life imprisonment only with provision for a sufficient degree of flexibility in the imposition and implementation of the sentence. The draft made life imprisonment the sentence imposed as a matter of course, in the absence of extenuating circumstances. Some Commissioners expressed the view that it did not 40

41 42 43 44

Summary Record of the 2213th Meeting, [1991] 1 Yearbook of the International Law Commission 43, para. 14, U.N. Doc. A/CN.4/SER.A/1991. He goes on to argue for additional penalties, e.g. deprivation of civil rights. Ibid., para. 15. Ibid. 42, para. 12. Ibid. 43, para. 14. Summary Record of the 2210th Meeting, ( n. 38) 24, para. 33. ibid., para. 36. 175

Chapter 5 allow the sentencing body sufficient freedom to choose between life imprisonment and a fixed term. For example, Commissioner Ogiso from Japan qualified his support of the proposal that allowed life imprisonment as the maximum sentence when he added that "he would none the less prefer a formulation whereby the international criminal court could choose, on a case-by-case basis, and in the light of all relevant circumstances, a penalty within a particular range".45 Commissioner Mahiou from Algeria also asked that "with regard to the enforcement of the sentence, no matter how harsh, the conduct of the convicted person should be taken into account so that he might benefit from a reduced sentence if he mended his ways".46 The support of life imprisonment by Commissioner Razafindralambo from Madagascar was also based on the belief that the harsh reality of the life sentence would be ameliorated in practice. The Commissioner explained that: "it was well known that, unless there was some express provision on the subject, the convicted person could normally benefit from a reduction of sentence, release on parole for good behaviour or early release on grounds of health".47

4. BUILDING ON THE DEBATE OF THE INTERNATIONAL LAW COMMISSION. The 1991 debate of the International Law Commission is significant because it reveals the extent to which the Commissioners felt it necessary to consider human rights principles when arguing both for and against life imprisonment. The opponents of this form of punishment relied on these principles directly. Even the supporters mentioned human rights, both the rights of victims that the life sentence would protect or vindicate and, at a different level, the rights of offenders that could and should be guarded in a system that imposed and implemented life sentences appropriately. In all, the debate went a long way towards underlining the point that if the international community wishes to take international human rights seriously it could not simply assume that life imprisonment did not raise issues of human rights principles. The debate of the International Law Commission did not resolve the issue of whether life imprisonment should be adopted as a penalty. At the end of the debate the life sentence was again put forward as an option, albeit in a more tentative form than in the Special Rapporteur's opening report. Therefore, before making a final decision on whether to incorporate life imprisonment as a penalty for heinous crimes against

Ibid., 23, para. 25. Summary Record of the 2209th Meeting, [1991] 1 Yearbook of the International Law Commission 18, para. 29, U.N. Doc. A/CN.4/SER.A/1991. Summary Record of the 2211th Meeting, [1991] 1 Yearbook of the International Law Commission 31, para. 42, U.N. Doc. A/CN.4/SER.A/1991. 176

International Criminal Justice humanity, the international community would have to look more closely at the arguments of principle, upheld in jurisdictions that accept the human rights norms, to which reference was made in somewhat general terms in the Commissioners' debate. The debate of the International Law Commission also raised a second question. Could common ground be found between the various positions? Clearly, there was no such ground between those who believed that a life sentence should never be imposed simply because it might be carried out in full and that no person should ever be penalised by the loss of liberty for an entire natural life, and those who support implementing life imprisonment by automatically incarcerating all offenders convicted of specified offences until death. However, there might be room for compromise between those who were prepared to give qualified support to a sentence of life imprisonment imposed and implemented in a way that ameliorated its harshness,48 and those who were opposed to life imprisonment only because they believed that it would be imposed in all cases and implemented in full. In this regard one may note that the supporters of life imprisonment, among the Commissioners in particular, were in favour of modes of imposition and implementation that might diminish the unjustly negative impact of life sentences on individual offenders. The Commissioners did not discuss such strategies in any detail. Nor did they spell out clearly how particular modes of imposition and implementation could be related to approaches to life sentences based on fundamental human rights principles. Before these issues could be resolved in the principled debate that had been begun by the International Law Commission, the work of the Commission was for a time overtaken by the urgent need for new international tribunals. 5. LIFE IMPRISONMENT AND INTERNATIONAL REALPOLIT1K In 1993 the Security Council of the United Nations decided that conditions in Yugoslavia required that an international tribunal be set up to deal with offences against international criminal law committed in that country. The tribunal had to be set up relatively quickly. There was no time for the long debates on appropriate principle, which had characterised the work of the International Law Commission. Nevertheless, the diplomats involved in drafting a statute for the new tribunal sought to pay attention to the current norms of international law.49 The Statute for the new tribunal was duly adopted by the Security Council of the United Nations on 25 May 1993.50 In 1994 a similar step was taken by the

In that it would not be imposed for crimes that did not justify such a heavy sentence and that offenders sentenced to a life term would be given a prospect of release if they were rehabilitated. Peter Burns, "An International Criminal Tribunal: the difficult union of principle and politics", (1994) 5 Criminal Law Forum, 341. Security Council Resolution 827 (1993) on Establishing an International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, SCOR.48/827, 25 May 1993, U.N.Doc. S/RES/827 (1993). 177

Chapter 5 Security Council to establish a tribunal to try offences against International Criminal Law committed in Rwanda.51 The statutes establishing international criminal tribunals for the former Yugoslavia and Rwanda are important benchmarks in the development of international penal law, as they incorporate provisions for penalties that apply directly to persons convicted of infringements of international criminal law, albeit in specific countries. The key penal provisions in regard to the former Yugoslavia and Rwanda are substantially identical52 although, as we shall see, in the case of the former Yugoslavia alone, the relevant article raises unique problems in respect of life imprisonment. Article 24 of the Statute of the International Criminal Tribunal for the former Yugoslavia provides: "1. The penalty imposed by the Trial Chamber shall be limited to imprisonment. In determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia. 2. In imposing the sentences, the Trial Chamber should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person. 3. ..."

The enactment of these provisions provides a number of important pointers to the future development of punishment guidelines in international law. First, article 24.1 is an attempt, albeit a flawed attempt, to deal with the problem of legality in respect to punishment. It provides both a clear indication of the penalty that may be imposed, that is, "imprisonment", and tries to address the potential charge of retrospectivity by providing for "recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia" when appropriate sentences of imprisonment are to be determined. It is noticeable that in this respect article 24 goes further than what is required by the International Covenant on Civil and Political Rights. Article 15(1) of that Covenant sets out the rule against retrospective crimes and punishments in both national and international law, but article 15(2) qualifies it by providing that "[n]othing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by the community of nations". The reference in article 24 of the Statute to the "general practice ... in the courts of the former Yugoslavia" for guidance in determining the terms of imprisonment appears to have been designed also to avoid reliance on customary international law, which itself may be uncertain, in

Statute of the International Criminal Tribunal for Rwanda, SCOR. 49/955, 8 November 1994, U.N. Doc. S/RES/955 (1994). Article 23 of the Statute of the International Tribunal for Rwanda is worded identically to article 24 of the Statute of the International Tribunal for the former Yugoslavia except that the word "Rwanda" is substituted for the words "former Yugoslavia." 178

International Criminal Justice determining the appropriate penalty. The statute is of course retrospective to the unavoidable extent that it was passed after the crimes in the former Yugoslavia and Rwanda had allegedly been committed. Nevertheless, its attempts to avoid the effects of charges of retrospectivity are an indication that the international criminal law too has developed beyond the less strict requirements of the Covenant, to the point where legality requires a clear definition not only of offences but also of the penalties potentially applicable to them. Secondly, the exclusion of the death penalty by the statutes sets the seal on the rejection of the death penalty as an acceptable form of punishment in international criminal law.53 At the same time, it raises the question of the appropriate penalty for what, in their aggravated forms, are some of the most serious crimes known to humankind. The statutes indicate that this penalty should be imprisonment in some form. What they do not say is whether or not it should be life imprisonment. This omission does not detract from the general point that the exclusion of the death penalty has opened the question of appropriate ultimate penalties. The third pointer that can be derived from the adoption of these statutes is the importance of international human rights law in determining what penalties are appropriate. The logical consequence of the rejection of the death penalty on grounds of its incompatibility with human rights norms is that other penalties too should be analysed against the background of these norms. A fourth development flowed indirectly from the Statute. In 1994 the International Criminal Tribunal for the former Yugoslavia adopted detailed Rules of Detention,54 which apply to both prisoners awaiting trial and sentenced prisoners. In drafting these Rules the Tribunal stated that it relied on the extant international guidelines, including the 1955 United Nations Standard Minimum Rules for the Treatment of Prisoners,55 the 1988 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment56 and the 1990 Basic Principles for the Treatment of Prisoners,57 as well as the 1987 European Prison Rules.58 The comprehensive Rules of Detention developed by the Tribunal demonstrate the international community's recognition that it has a duty to 53

54

55 56 57 58

Theodor Meron, "The Normative Impact on International Law of the International Tribunal for Former Yugoslavia", in Yoram Dinstein and Mala Tabory, (eds.), War Crimes in International Law, The Hague: Martinus Nijhoff, 1996, 211-219; Schabas (n. 4) 756-64. The Rules Governing the Detention of Persons Awaiting Trial on Appeal Before the Tribunal or Otherwise Detained on the Authority of the Tribunal, IT/38/Rev. 6, adopted 5 May 1994. See also M. Cherif Bassiouni and Peter Manikas, The Law of the International Criminal Tribunal for the Former Yugoslavia, Irvingtonon-Hudson, N.Y.: Transnational Publishers, 1996, which includes comparable provisions in other international standards and the authors' own comments. Standard Minimum Rules for the Treatment of Prisoners, E.S.C. Res. 663 C (XXIV), 31 July 1957, 24 U.N. ESSCOR Supp. (No.l) 11, U.N. Doc. E/3048 (1957) and 2076 (LXII) (1957). G.A. Res. 43/173, 9 December 1988, 43 U.N. GAOR Supp. (No. 49) 297, U.N. Doc. A/43/49. G.A. Res. 45/111, 14 December 1990, 45 U.N. GAOR Supp. (No. 49A) 199, U.N. Doc. A/RES/45 111. Committee of Ministers of the Council of Europe, (Recommendation No. R. 987) 3, "On the European Prison Rules", Feb. 12, 1987, in Council of Europe, Collection of Recommendations, Resolutions, and Declarations, 1989, 160. 179

Chapter 5 determine positively how prisoners sentenced for crimes against international law are to be treated. a) Life imprisonment as automatic substitute for the death penalty? An obvious lacuna in article 24 of the Statute of the International Criminal Tribunal for the former Yugoslavia is that, although it goes further than any of its predecessors in spelling out what form of punishment may be imposed, it does not specify directly what the heaviest penalty of imprisonment should be. The clarity of the instruction to the Tribunal to "have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia" is clouded by the fact that for offences such as those over which the Tribunal has jurisdiction, the courts of the former Yugoslavia could impose the death penalty or, failing that, a prison sentence of a maximum of 20 years.59 (This problem does not arise in the case of Rwanda, as ordinary Rwandese courts can impose both the death penalty and life imprisonment.60) The question that has concerned commentators is whether the Tribunal for the former Yugoslavia, which manifestly cannot impose the death penalty, can impose a prison sentence of longer than 20 years, and in particular whether it can impose life imprisonment. One view is that of Bassiouni and Manikas who comment that the words "shall have recourse to" are "somewhat ambiguous".61 They accept that the words allow the Tribunal some flexibility to depart from the sentencing practice of the courts of the former Yugoslavia, but nevertheless conclude that to impose a prison term longer than the maximum possible in the former Yugoslavia would violate the principles of legality and the prohibition against ex post facto laws.62 Other commentators,63 and most importantly the Trial Chambers of the Tribunal for the former Yugoslavia itself, have held that the Tribunal has more leeway in its interpretation of article 24. In the case of Prosecutor v Erdemovic, Trial Chamber I considered its general approach to sentencing and held that "reference to the general practice regarding prison sentences applied by the courts of the former Yugoslavia is, in fact, a reflection of the general principle of law internationally recognised by the community of nations whereby the most severe penalties may be imposed for crimes against humanity".64 It concluded that "[w]henever possible, the International Tribunal will review the legal practices of the former Yugoslavia but will not be bound in any way

Bassiouni and Manikas (n. 54) 700. William A. Schabas, "Sentencing by International Tribunals: A Human Rights Approach", (1997) 7 Duke Journal for Comparative and International Law, 479. Bassiouni and Manikas (n. 54) 700. Ibid., 700-702. Virginia Morris and Michael P. Scharf, An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia: a Documentary History and Analysis, Vol. 1, Irvington-on-Hudson, N.Y.: Transnational Publishers, 1995, 274-75. Prosecutor v Erdemovic Case No. IT-96-22 -Trial Chamber 29 November 1996, at para 40. 180

International Criminal Justice by those practices in the penalties it establishes and the sentences it imposes for the crimes falling within its jurisdiction".65 Subsequently in Prosecutor v Tadic,66 Trial Chamber II of the International Tribunal for the former Yugoslavia adopted a similar general approach to the law governing its sentencing powers and concluded that article 24 allowed the International Tribunal the flexibility to impose the penalty of life imprisonment. It reasoned as follows: "The practice of courts in the former Yugoslavia does not delimit the sources upon which the Trial Chamber may rely in reaching its determination of the appropriate sentence for a convicted person. Rather, the Trial Chamber has had recourse to the sentencing practice of the courts of the former Yugoslavia except where the Statute, international law, or special considerations including the special nature and purpose of the International Tribunal require otherwise. Article 24.1 of the Statute limits the International Tribunal to penalties of imprisonment or confiscation of wrongfully acquired property. Consequently, for crimes which, in the courts of the former Yugoslavia, would receive the death penalty, the International Tribunal may only impose imprisonment but it may impose a maximum penalty of life imprisonment in its stead, consistent with the practice of States which have abolished the death penalty and with the commitment by States progressively to abolish the death penalty under the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty. This is the understanding given to the Statute both by members of the Security Council and Rule 101 (A) of the Rules. There is thus no violation of the nullum crimen sine lege, nulla poena sine lege principle."67 The arguments advanced by these trial chambers in support of their jurisdiction to impose the life sentence are not convincing. Their primary weakness is that by effectively reducing article 24 to a mere statement of general principle of international law, providing only that the death penalty and punishments other than imprisonment may not be imposed, they undermine the legal certainty that the drafters of the article sought to create by their reference to practice in the former Yugoslavia.68 Equally unconvincing are the assumptions they made about life imprisonment generally. That many of the States that have abolished the death penalty have replaced it with life imprisonment is not a sufficient justification for claiming that life imprisonment is automatically acceptable as an alternative to the death penalty. The very fact that the former Yugoslavia, like other States in the past, allowed the death penalty whilst making Ibid. Prosecutor v Tadic Case No. IT-94-1-Trial Chamber 14 July 1997. Ibid, para 9 (references omitted). But cf., Schabas (n. 60) 481-82 who notes the difference between the intention of the drafters of this article and the interpretation given to it by the tribunal in the Erdemovic case, but who, nevertheless, concludes that reliance on customary international law and a less positivist approach allows the court to satisfy the principle of legality without having to follow, in a strict sense, the sentencing practice in the former Yugoslavia. 181

Chapter 5 no provision for life imprisonment should have alerted the Trial Chamber to the fact that the acceptability of life imprisonment as a form of punishment needed to be considered independently. In considering this matter it should have had regard both to the general principles of international human rights law and, as article 24 of its own statute specifically mandates it to do, to the practice in the courts of Yugoslavia. The judgment contains no such arguments. Instead it relies on "the understanding given to the Statute" by members of the Security Council and on Rule 101 (A) of the Tribunal's own rules. Neither of these should have been regarded as decisive. The only source of the "understanding" of the "members" (plural) of the Security Council to which the judgment refers is a comment made without supporting argument by the representative of a single country, the United States of America.69 If anything, the overall history of the enactment of article 24 points in the opposite direction. The Security Council was aware that the law of the former state of Yugoslavia did not allow for the imposition of life imprisonment,70 yet it did not provide explicitly that the Tribunal should be able to impose it. Given that article 24 was introduced to provide a measure of legal certainty where none had existed before, a mere reference to life imprisonment during the passage of the Article should not have been regarded as sufficient to give the Tribunal the authority to impose imprisonment for life, where a Yugoslav court, whose practice the Tribunal is explicitly enjoined to consider, would not have been able to do so. Rule 101 (A) does provide that a person may be sentenced to life imprisonment. However, the Rules are mere procedural and evidentiary guidelines developed by the judges of the Tribunal in terms of specific powers to regulate these matters granted them by the Statute.71 They cannot create additional powers for the Tribunal that go beyond the Statute.72 If, as has been argued, the Statute does not provide for the imposition of life imprisonment, the Rule is ultra vires and should, as Bassouni and Manikas suggest,73 be amended. My conclusion is that the judgments of the Tribunal for the former Yugoslavia have not provided convincing arguments for the automatic substitution of life imprisonment for the death penalty in international law. They have also not provided other acceptable See the comment by Ms. Albright at the meeting of the Security Council on 25 May 1993: Provisional Verbatim Record of the 3217th mtg. S/PV.3217 at 17. It is interesting that Ms. Albright divides her comments on "technical issues" into those on which she understands other members of the Security Council to share the views of her government (Ibid, at 15) and those on which the United States also wishes to offer clarifications (Ibid, at 16). The comment on life imprisonment belongs to the latter group. Schabas (n. 60) 480. The difficulty was recognised in a comment on an earlier draft statute for the Yugoslavia tribunal prepared by the Conference on Security and Co-operation in Europe. See Hans Corel], Helmut Turk and Gro Thune, Proposal for an International War Crimes Tribunal for the Former Yugoslavia/by rapporteurs (Corell-Turk-Thune) under the CSCE Moscow Human Dimension Mechanism to Boznia-Herzegovina and Croatia, Prague: Conference on Security and Co-operation in Europe, 1993, 69. Article of 15 of the Statute provides: "The judges of the International Tribunal shall adopt rules of procedure and evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters." Morris and Scharf (n. 63) 178. Bassiouni and Manikas (n. 54) 702. 182

International Criminal Justice arguments that this Tribunal is authorised by its own Statute to impose life imprisonment. These conclusions do not mean that the 'correct' interpretation of article 24 of the Statute is that it indicates that international criminal law has developed to a point where it excludes the sentence of life imprisonment. The significance of the Statute is rather that it provides pointers towards how international law should approach the question of life imprisonment in an era where the principle of legality demands certainty in respect of applicable punishments, where the death penalty is not a punishment that can realistically be considered, and where principles of international human rights law have to be applied in a debate about the acceptability of life imprisonment as the ultimate penalty for infringements against international criminal law. b) Releasing lifers There is one further aspect of the Statute of the Tribunal for the former Yugoslavia (and also of the Statute of the Tribunal for Rwanda74) that gives evidence of a less than thoroughly thought through position about life imprisonment. Article 28 of the Yugoslavia Statute provides that: "If, pursuant to the applicable law of the State in which the convicted person is imprisoned, he or she is eligible for pardon or commutation of sentence, the State concerned shall notify the International Tribunal accordingly. The President of the International Tribunal, in consultation with the judges, shall decide the matter on the basis of the interests of justice and the general principles of law." As in the case of the penalty provision, there is an uncomfortable mixture of reliance on an existing legal regime and of new power that is given to the Tribunal. The reason for the reference to the law of the State in which the convicted person is imprisoned in order to set the point at which the Tribunal must be notified, is presumably again to avoid the charge of ex post facto law making. One can see the superficial attraction of having prisoners sentenced by an international tribunal being considered for release at the same stage as their counterparts in the national system in which they are incarcerated. The difficulty is that the prisoners sentenced by the Tribunal may have different regimes for considering release, which would mean that they would become "eligible for pardon or commutation of sentence" after having served very different proportions of their sentences. Moreover, the terms "pardon" and "commutation" are themselves inadequate to cover the range of possible national variations in ways of releasing prisoners from incarceration. What about the possibility of conditional release where the offender remains subject to parole, licence or other restrictions, but formally ceases to be a prisoner?

On this point the two Statutes and their related rules are substantially identical. See art. 17 of the Rwanda Statute and Rule 126 of the rules made in terms of it. The comments on the Yugoslavia Statute therefore also apply to the Rwanda Statute. 183

Chapter 5 Again as in the case of the penalty clause, the Statute makes no specific mention of life imprisonment in the provisions for release. Yet problems relating to early release are compounded in the case of life imprisonment. There is no consensus at the national level about the stage in their sentence at which persons serving life sentences should be released, about how that stage should be determined, about what mechanisms are appropriate for "pardon or commutation" of life sentences and, indeed, about whether early release should be possible at all. The solution in practice has been for the Yugoslavia Tribunal to enter into a series of model agreements with the various European countries that have undertaken to house prisoners sentenced by the Tribunal.75 These agreements seek to standardise the stage at which offenders will be referred to the Tribunal for consideration both for pardons and commutation and other forms of early release. It has been suggested that there is a European norm that this should take place after two-thirds of the sentence has been served. While this arrangement may work in practice, it is clear that the way that it has been introduced is far removed from what the principles of legality and legal certainty would demand. Having introduced the national rules in the first part of article 28, the second part gives the President of the Tribunal, in consultation with the judges, the power to decide the matter. The requirement that this must be done "on the basis of the interests of justice and the general principles of law" is somewhat vague, but at least it refers to legal standards, whereas in many countries 'pardons' traditionally have been the virtually unfettered prerogative of the sovereign or head of State. The Tribunal's Rules of Evidence and Procedure76 go further. Rule 125 provides: "In determining whether pardon or commutation is appropriate, the President shall take into account, inter alia, the gravity of the crime or crimes for which the prisoner was convicted, the treatment of similarly-situated prisoners, the prisoner's demonstration of rehabilitation, as well as any substantial co-operation of the prisoner with the Prosecutor." The listed criteria, particularly if one projects them on the consideration of the release of a person serving a life sentence, are of considerable interest. They are commendable insofar as they represent an attempt, in accordance with the principle of legality, to develop a framework to guide a discretionary decision of major importance as it will decide on the liberty of an individual prisoner. Nevertheless, the criteria that are deployed raise difficult issues that have exercised national and regional human rights courts: Some of these issues relate to due process concerns: How should the gravity of the crime be determined for the purpose of considering early release? Is it not a form of double jeopardy to consider the gravity of the crime again at the release stage? Other issues concern the human dignity and personality rights of the offender and even the prohibition David Tolberg and Asa Rydberg, "Enforcement of Sentences" in Richard May et al (eds.), Essays on ICTY Procedure and Evidence in Honour ofGabrielle Kirk McDonald, The Hague: Kluwer, 2001, 533-543. Rules of Procedure and Evidence for the International Criminal Tribunal for the Former Yugoslavia, U.N.Doc. IT/32/Rev. 21, adopted 1 1 February 1994. 184

International Criminal Justice of cruel, inhuman and degrading punishment: Is it fair to expect prisoners to demonstrate that they have been rehabilitated? May a prisoner legitimately be 'persuaded', that is pressured, to co-operate even after conviction by the prospect of early release? Even if these questions could be answered satisfactorily, the judicial, standard-driven process that this rule envisages would not be able to overcome the basic weakness of the overall procedure. If it were to be applied to prisoners serving life sentences in different countries, the initial requirement of notice - determined by when in terms of national law such prisoners would be eligible for release - to set the procedure in motion would mean that there could be enormous disparities in when such notification would take place. No subsequent procedure would be able to remedy this shortcoming equitably. This flaw, together with the further weakness that there is no provision for what would happen if, in the case of a very long sentence, the Tribunal has wound up its work and disbanded before release falls to be considered,77 shows that the statutes of the Yugoslavia and Rwanda tribunals have not dealt adequately with this important aspect of life imprisonment. c) The tribunals in practice By August 2001 the International Criminal Tribunal for the former Rwanda had exercised its discretion to impose life sentences in five cases.78 In the first three of these cases, those of Kambanda 79, Akayesu,80 and Kayishema,81 the sentence had been confirmed on appeal. Unfortunately though, these judgements tell one little about the how the Tribunal exercised its discretion. The sentencing practice in Rwanda, where both the death penalty and life imprisonment are competent verdicts, seems to have played a negligible role in these decisions.82 In Kambanda the Trial Chamber took together the various offences and imposed a single sentence of life imprisonment. It did so notwithstanding the fact that the accused had pleaded guilty, but was swayed by the intrinsic gravity of the offence. It concluded that "the aggravating circumstances surrounding the crimes committed by Jean Kambanda negate the mitigating circumstances, especially since Jean Kambanda

This criticism is made by Morris and Scharf (n. 63) (Vol. 1) at 307, who generally have a far more favourable view of the procedure for pardon and commutation of sentence than do Bassioiuni and Manikos (n. 54). Prosecutor v Kambanda ICTR-97-23-T, Trial Chamber 4 September 1998, Appeals Chamber 19 October 2000; Prosecutor v Akayesu ICTR-96-4-T, Trial Chamber 2 October 1998, Appeals Chamber 1 June 2001; Prosecutor v Kayishema ICTR-95-1-T Trial Chamber 21 May 1999, Appeals Chamber 1 June 2001. Appeals are still pending in the cases of Prosecutor v Rutaganda ICTR-96-3-T, Trial Chamber 6 December 1999 and Prosecutor v Musema ICTR-96-13-T Trial Chamber 27 January 2000. Ibid. Ibid. Ibid. In determining terms of imprisonment the Tribunal is required by art. 23.2 of its Statute to "have recourse to the practice regarding prison sentences in the courts of Rwanda". 185

Chapter 5 occupied a high ministerial post, at the time he committed the said crimes".83 The Appeals Chamber agreed with this analysis.84 In Akayesu's case the analysis was similar except that the accused in this instance pleaded not guilty. The Trial Chamber noted separate sentences for the various counts, including two life sentences for genocide and one for a crime against humanity. However, it decided that the sentences should be served concurrently and therefore imposed a single sentence of life imprisonment.85 Similar decisions were reached in the two cases, Rutanganda86 and Musema,87 in which appeals are still pending. The judgment of the Trial Chamber in Kayishema is interesting for an unexpected reason. The Trial Chamber drew a distinction between a sentence of "imprisonment for a term up to and including the remainder of the convicted person's life", which is the actual wording of Rule 101A that regulates the imposition of sentence, on the one hand, and 'life imprisonment' on the other. It imposed four "remainder-of-life" sentences to run concurrently and held that the sentence should be given its "plain meaning" and distinguished from "a 'life sentence' under the laws of most national jurisdictions".88 The intention of the Trial Chamber appears to have been to ensure that Kayishema, who was convicted of four counts of genocide, would remain in prison for a full natural life, that is, the equivalent of the American life without parole sentence. Subsequently, the Appeals Chamber in Kambanda's, case dealt with this somewhat opportunistic point. It explained that in Kambanda's case the English text of the initial judgment, which recorded Kambanda's sentence as "life imprisonment", had been in error: "The original text of the Judgement was in French. This phrase has been translated in the English text as 'life imprisonment'. The Appeals Chamber notes that this is the maximum sentence which may be imposed by the Tribunal, and that the correct translation should have been 'imprisonment for ... the remainder of his life' as provided in Rule 101 (A) of the Rules. The Appeals Chamber confirms that this maximum sentence (and any sentence of imprisonment) is served in accordance with the applicable law of the State in which the convicted person is imprisoned under the supervision of the Tribunal (Article 26 of the Statute). It is also always subject to possible reductions if provided under the applicable law in this State and if the President of the Tribunal in consultation with the Judges so decides (Article 27 of the Statute)."89 This question was not raised in the Appeals Chamber in Kayishema's case, so one may assume that the interpretation given by the Appeals Chamber in Kambanda is At para 62. Kambanda was Prime Minister of Rwanda at the time of the commission of his offence. Kambanda (n. 78). This sentence too was upheld on appeal. (n. 78). (n. 78) (n. 7 8) para 31. (n. 78) footnote 144 to para 126 (emphasis in the original). 186

International Criminal Justice authoritative. However, the judgment highlights the uncertainty about how life sentences will be administered in terms of the Rules of the international tribunals for Rwanda and (putatively) for the former Yugoslavia. It also indicates that at least some judges on these tribunals would like to see the whole-life sentences actually enforced. The International Tribunal for the former Yugoslavia has continued to reiterate its power to impose life sentences but has hitherto refrained from doing so. It has however imposed 40 years in the case of Jelisic,90 45 years in the case of Blasic 91 and 46 years in the case of Krstic.92 All of these are considerably more severe than the maximum term of imprisonment allowed in the former Yugoslavia. The Appeals Chamber has justified these sentences by explaining that, as the Tribunal was not bound by the practice in the former Yugoslavia to the extent that it was prohibited from imposing a life sentence, it followed that it could impose a term of 40 or more years.93 This is, however, not a sufficient explanation for choosing these sentences. In all three cases the prosecution asked for sentences of life imprisonment. In each instance the Chambers confirmed that, while such sentences were competent, they preferred a fixed period of imprisonment. They gave no reason for this preference and therefore avoided the difficult question of distinguishing between these long terms and a sentence of life imprisonment. There is indeed no indication of what the Yugoslavia Tribunal thinks the practical effect of its sentences will be. It has been suggested that the Tribunal assumes that most European countries that have undertaken to house sentenced prisoners will recommend their release after they have served two-thirds of fixed-term sentences.94 If this is so, the offenders in these cases are likely to serve around 30 years each. Such a term would be far higher than the average term served by offenders sentenced to life imprisonment in western Europe, which is probably less than 20 years.95 It appears, nevertheless, as if the Tribunal intends these fixed terms to be lesser sentences than life imprisonment. As the Yugoslavia Tribunal has not imposed a life sentence yet, there is no indication whether in practice these fixed-term sentences are likely to be more or less severe than a life sentence. One cannot quite escape the suspicion that the Yugoslavia Tribunal is attempting to impose the equivalent of life sentences without actually doing so.96

Prosecutor v Jelisic Case No. IT-95-10 Trial Chamber 14 December 1999, Appeals Chamber 5 July 2001. Prosecutor v Blasic Case No. IT-95-14 Trial Chamber 3 March 2000. Prosecutor v Krstic Case No. IT-98-33 Trial Chamber 2 August 2001. Prosecutor v Jelisic Case No. IT-95-10 Trial Chamber 14 December 1999, Appeals Chamber 5 July 2001 para 117. Tolberg and Rydberg (n. 75) 536. Frieder Dunkel, Gutachtliche Stellungnahme in Sachen -2 BvR 1041/88 und BvR 78/89 Bundesverfassungsgericht, Zweiter Senat, unpulished report, 1990. See the comment of Judge Wald in the partially dissenting opinion in the Appeals Chamber in Prosecutor v Jelisic, Section VII, para 2: "The 40-year sentence the Trial Chamber pronounced for violations of the laws or customs of war and crimes against humanity, to which Jelisic entered a plea of guilty, is, in effect a life sentence for a man of his age." 187

Chapter 5 6. THE INTERNATIONAL CRIMINAL COURT: A PRINCIPLED COMPROMISE? While the establishment of the international criminal tribunals for the former Yugoslavia and for Rwanda was grabbing the headlines, the International Law Commission was continuing its work and reporting back to the General Assembly annually. The principled opposition to life imprisonment that had been expressed by some members of the International Law Commission, had resulted in life imprisonment being proposed only as a bracketed alternative by the Special Rapporteur at the end of the Commission's 1991 debate.97 However, opposition to the principle of life imprisonment was not equally strong in the Committee of the General Assembly of the United Nations, which subsequently considered the 1991 Report from the International Law Commission.98 By 1993 the proposal of life imprisonment as a sentencing option was firmly reinstated. In that year the working group of the International Law Commission on a Draft Statute for an International Criminal Court included it without brackets as a form of punishment that could be imposed by that Court.99 With only minor alterations in respect of the provision dealing with penalties, the Draft Statute of this working group was included as a separate subsection of the work of the Commission on the Draft Code of Crimes against the Peace and Security of Mankind, which was published in 1994.100 This Draft Statute in turn has formed the basis for an inconclusive discussion that the Preparatory Committee of the General Assembly of the United Nations on the Establishment of an International Criminal Court had in 1996 on a possible penalty provision in the statute for such a Court.101 After this, things moved more quickly and in December 1997 the General Assembly called for an international diplomatic conference to be held to adopt a Convention for the Establishment of an International Criminal Court. With an increased role being played directly by national diplomatic representatives, some of the earlier debates about sentencing were revived. Both in the later preparatory meetings and at the Rome Diplomatic Conference in July 1998 the call for the death penalty, which had never disappeared entirely, was revived. However, it soon became apparent that the death 97

Report of the International Law Commission on the work of its forty-third session: Draft Code of Crimes Against the Peace and Security of Mankind, [1991] 2(2) Yearbook of the International Law Commission 8385, U.N. Doc. 4/CN.4/SER.A/1991/Add.l (Part 2). 98 Report of the International Law Commission on the work of its forty-third session: Topical summary of the discussion held in the Sixth Committee of the General Assembly during its forty-sixth session, prepared by the secretariat, U.N. Doc. A/CN.4/L. 469 at 57-58 (1992). 99 Report of the Working Group on a Draft Statute for an International Criminal Court, [1993] 2(2) Yearbook of the International Law Commission 100, U.N. Doc. 4/CN.4/SER.A/1993/Add.l (Part 2). 100 Draft Statute for an International Criminal Court in Report of the International Law Commission on the work of its forty sixth session: Draft Code of Crimes Against the Peace and Security of Mankind, [1994] 2(2) Yearbook of the International Law Commission 26-69, U.N. Doc. 4/CN.4/SER.A/1994/Add.l (Part 2). (hereinafter Draft Statute). For the subsequent legislative history of the Draft Statute itself, see Rayfuse (n. 13)24. 101 Report of the Preparatory Committee on the Establishment of an International Criminal Court, U.N. GAOR, 54st Sess., Supp. No. 22, at 63, U.N. Doc. A/51/22 (1996). 188

International Criminal Justice penalty was fundamentally unacceptable to many key countries, to the extent that if it were in the final Statute they would not support it.102 After protracted negotiations a compromise emerged, in which the life sentence played a pivotal part. Rolf Einar Fife, the Norwegian diplomat who chaired the debates about the penalty provision in Rome, has set out the points of departure of the representatives of opposing views: "Some delegations had submitted that inclusion of life imprisonment was necessary in order for them to show flexibility as to non-inclusion of the death penalty. Other delegations insisted, irrespective of their position on the issue of the death penalty, on the need to allow for the application of life imprisonment in view of the gravity of the crimes concerned. However, a number of delegations were opposed to it, or expressed doubts as to the acceptability of life imprisonment as the ultimate penalty against infringements of international criminal law from a human rights perspective."103 Particularly important was that the debate directly involved countries, such as Portugal104 and Brazil,105 whose constitutions outlaw life imprisonment entirely, and others, such as Spain and Norway, 106 which have no provision for it in their national penal codes. In the end, however, life imprisonment was included as a penalty that could be imposed by the International Criminal Court. This formed part of a compromise that included three key elements: (i) a provision that restricted the use of life imprisonment; (ii) a specific provision to ensure that the penalties that could by imposed by the International Criminal Court would not affect the penalties applicable in national courts; and (iii) a provision to ensure that life sentences were implemented uniformly. These provisions were included in the Rome Statute for the International Criminal Court, which was adopted by the Conference on 17 July 1998. A further, potentially divisive, issue was neatly sidestepped: the Statute as a whole was made applicable only to persons aged 18 William Schabas, "Life, death and the crime of crimes: Supreme penalties and the International Criminal Court Statute", (2000) 2 Punishment and Society, 263. Rolf Einar Fife, "Penalties" in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, Baden-Baden: Nomos, 1999, 990, para 11. Article 30.1 of the Constitution of Portugal (1989) provides: "No one shall be subjected to a sentence or security measure involving deprivation or restriction of freedom for life or for an unlimited or indefinite term." (translated in Albert P. Blaustein and Gisbert H. Flanz, (eds.), Constitutions of the Countries of the World, New York: Oceana Pulications, 1991). Life imprisonment was abolished in Portugal as early as 1884. It is also interesting that the Portuguese concern to control state authority to order indefinite incarceration goes beyond the scope of the criminal law: Article 30.2 of the Constitution provides: "In case of danger due to serious mental disorder that cannot be treated in an open environment, security measures involving deprivation or restriction of freedom may be extended successively by judicial decision in each case, for as long as the said condition lasts". Article 5, s. XLVII(b) of the Constitution of Brazil.

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Chapter 5 years or older.107 In this way the question did not arise whether a life sentence, contrary to the provisions of article 37(a) of the 1989 United Nations Convention on the Rights of the Child,108 should be imposed on a person under the age of 18 years who committed the extremely grave crimes in international criminal law with which the Statute deals.109 The three key elements of the Rome Statute which do relate directly to life imprisonment require closer examination in order to reveal more fully the ideas behind the compromise that was reached. a) Restricted use of life imprisonment Paragraph 1 of article 77, the clause that deals with applicable penalties, provides: "Subject to article 110, the Court may impose one of the following penalties on a person convicted of a crime referred to in article 5 of the Statute: Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or A term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person." The reference to article 110, which sets out the procedure for the possible early release of prisoners and to article 5, which lists all the crimes, viz. genocide, crimes against humanity, war crimes and the crime of aggression, with which the Statute deals, indicates the centrality of article 77.1 to the penal scheme of the Statute. The penalties of a fine and forfeiture mentioned in article 77.2 may be imposed only in addition to imprisonment and are not relevant for the current discussion. It is important to note the obvious point that, in terms of article 77, life imprisonment is not a mandatory sentence for any offence at all. In this respect the provision already differs from many countries where the opposite is true for offences significantly less serious than, say, genocide. A close reading of article 77.1 makes it clear that the use of life imprisonment is to be restricted quite significantly. Imprisonment for a fixed number of years is the first sentencing option. Its use is unqualified and it should therefore be regarded as the sentence to be imposed, with the length of the term to be determined by the somewhat general criteria - such factors as "the extreme gravity of the crime and the individual circumstances of the convicted person" - which the Court is obliged to consider in terms of article 78. Life imprisonment as an option requires something more. 106

107 108 109

The prohibition in these countries is indirect for their penal codes make provision only for a sentence of imprisonment of a fixed number of years: Jean Pradel, Droit Penale Compare, Paris: Editions Cujas, 1995, 576. Article 26 of the Rome Statute. Convention on the Rights of the Child, G.A. Res. 44/25, 20 November 1989, 44 U.N. GAOR Supp (No. 49) 166, U.N. Doc. A/RES/44/25 (entered into force on 2 September 1990). Article 26 of the Rome Statute excludes persons under the age of 18 years at the time of the commission of the alleged offence from the jurisdiction of the Court. Cf. Fife (n. 103) 994.

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International Criminal Justice There must be a finding of the "extreme" gravity of the crime as well as consideration of the personal circumstances of the convicted person. It is, therefore, not open to the International Criminal Court to argue that all the crimes over which it has jurisdiction are extremely grave. The Court will have to develop standards to distinguish those cases in which life imprisonment has to be imposed from those for which a fixed term of imprisonment is appropriate. Such a clear distinction has not been required by the statutes of the Yugoslavia and Rwanda tribunals: the examination of their case law has suggested that, where they have imposed life sentences, they have done so by applying the 'conventional' criteria contained in the general sentencing provisions in their founding statutes, which set no specific requirements for imposing life imprisonment. The additional requirement of "extreme gravity" for life sentences, coupled with the fact that the Rome Statute envisages a sentencing hearing and a pronouncement by the court on sentence subsequent to and separate from the procedures leading to conviction,110 may presage the development of an equivalent of the American jurisprudence on the death penalty, which insists on a particularly careful and structured consideration of aggravating and mitigating factors before the ultimate penalty can be imposed. b) International penalties and national laws The specific penalties set by the Rome Statute were so controversial that some countries wished to have a provision included in the Statute to make it absolutely clear that they would still be able to impose the penalties prescribed by their own national laws. Strictly speaking, such a provision was probably unnecessary, as the Statute recognises that national legal systems have primacy in dealing with the crimes that the Statute outlaws: the International Criminal Court only comes into play if they fail do so adequately. A statement by the President of the Conference explained that the intention of the Statute was not to have any legal bearing on national practices with regard to the death penalty.111 "Nor", the statement continued, "shall it be considered as influencing in the development of customary international law or in any other way, the legality of penalties imposed by national systems for serious crimes".112 Nevertheless, article 80 dealing with "non-prejudice to national application of penalties and national laws" was added. It provides that nothing in the part of the Statute dealing with penalties "affects the application by States of penalties prescribed by their national law, nor the law of States which do not provide for penalties prescribed in this Part". There is no doubt that the primary reason for this provision was that several States wanted to ensure that their right to impose the death penalty was not affected. However, it may be argued that the provision has wider implications also for other forms of punishment. Certainly, it leaves open the possibility for those countries that have neither life imprisonment nor the death

Article 76.2 of the Rome Statute. The statement is reported in Schabas (n. 102) 279. Ibid. 191

Chapter 5 penalty on their statute books to continue to decline to punish international crimes, or indeed any other crimes, with these penalties. It is also interesting to speculate that article 80 and the accompanying statement may not have the full effect that its proponents intended. Whilst they allow for existing national penal regimes for crimes against international criminal law to continue, they do not exclude the development of customary international law on acceptable penalties outside the framework of the Rome Statute. In respect of life imprisonment such developments have been relatively limited at the international level. With the exception of the debate leading to article 37(a) of the United Nations Convention on the Rights of the Child,113 international bodies have considered life imprisonment only in fairly general terms.114 The fact that some extradition agreements allow extradition to be refused if the person to be extradited may be punished not only by the death penalty but also by life imprisonment is a further indication that life imprisonment has an evolving special status in international law. 115 The current situation is summarised by the international lawyer, Manfred Nowak, who has noted that it is a question of the ordre public as to how long life imprisonment can be viewed as beyond the scope of article 7 of the International Covenant on Civil and Political Rights, that is the prohibition on inhuman or degrading treatment or punishment.116 c) Enforcement of sentences As in the case of the enforcement provisions in the Yugoslavia and Rwanda statutes, the Rome Statute envisages national States taking primary responsibility for the enforcement 113 114

115

116

See text at (n. 108) above. See the Resolution of the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders in Havana 27 August - 7 September 1990: "Assessment for the release of life prisoners". It contains little more than recognition of the need for due process if lifers are considered for release. It also asks the United Nations to take this issue further. The response was a somewhat bland publication: United Nations Office in Vienna, Crime Prevention and Criminal Justice Branch, Life Imprisonment, Vienna: United Nations, 1994. The United Nations Model Treaty on Extradition notes that States may choose to add a further restriction to the standard extradition treaties, namely one that would allow extradition to be refused if the State requesting extradition does not give an assurance that a "life, or indeterminate sentence" will not be imposed: United Nations Model Treaty on Extradition, G.A. Res. 45/116, 14 December 1990, 45 U.N. GAOR Supp (No. 49) U.N. 211, U.N. Doc. A/RES/45/116, art. 4. The Inter-American Convention on extradition goes further. It provides in peremptory terms: "The States Parties shall not grant extradition when the offense in question is punishable in the requesting State by the death penalty, by life imprisonment or by degrading punishment, unless the requested State has previously obtained from the requesting State, through the diplomatic channel, sufficient assurances that none of the above mentioned penalties will be imposed on the person sought or that, if such penalties are imposed, they will not be enforced." Organization of American States: Inter-American Convention on Extradition, art. 9, O.A.S. Doc. OEA/Ser.A/36 (SEPF). Manfred Nowak, CCPR Commentary, Kehl: Engel, 1993, 134.

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International Criminal Justice of sentences. The release of prisoners is governed by article 110 of the Rome Statute, which provides: "1. The State of enforcement shall not release the person before expiry of the sentence pronounced by the Court. 2.The Court alone shall have the right to decide any reduction of sentence, and shall rule on the matter after having heard the person. 3. When the person has served two thirds of the sentence, or 25 years in the case of life imprisonment, the Court shall review the sentence to determine whether it should be reduced. Such a review shall not be conducted before that time. 4. In its review under paragraph 3, the Court may reduce the sentence if it finds that one or more of the following factors are present: (a) The early and continuing willingness of the person to co-operate with the Court in its investigations and prosecutions; (b) The voluntary assistance of the person in enabling the enforcement of the judgements and orders of the Court in other cases, and in particular providing assistance in locating assets subject to orders of fine, forfeiture or reparation which may be used for the benefit of victims; or (c) Other factors establishing a clear and significant change of circumstances sufficient to justify the reduction of sentence, as provided in the Rules of Procedure and Evidence. 5. If the Court determines in its initial review under paragraph 3 that it is not appropriate to reduce the sentence, it shall thereafter review the question of reduction of sentence at such intervals and applying such criteria as provided for in the Rules of Procedure and Evidence." There are several striking differences between this provision and those that govern the release of prisoners sentenced by the Yugoslavia and Rwanda tribunals. Most significantly, the Court itself has the exclusive power to decide on the early release of all prisoners including those serving life sentences. The problems of inconsistency inherent in the statutes of the Yugoslavia and Rwanda tribunals, where reviews are triggered by the varying release practices of the states of enforcement, are thus avoided. Further legal certainty is provided by stipulating a fixed period, 25 years in the case of persons serving life sentences, after which the sentences must be reviewed. The advantage of this approach for consistency and legality generally are clear. This consistency should be further enhanced by paragraph 5 that provides for a procedure to be created for further reviews of those cases where the initial review does not result in a reduction of sentence. The legal certainty has come at a price - a very long period before the first consideration of release is possible. Fife explains frankly that this very long minimum period was a result of a compromise with those who had favoured the death penalty and 193

Chapter 5 points out that at Nuremberg the death penalty was imposed on the most serious offenders, leaving life imprisonment as the penultimate rather than the ultimate penalty.117 Even with this qualification the harshness of the minimum period cannot be denied. Twenty-five years is longer than all the offenders, with the exception of Rudolph Hess, who were sentenced to life imprisonment by the Nuremberg Tribunal, actually served. Hess served more than 40 years before he committed suicide in 1987 at the age of 93, but the other two offenders sentenced to life imprisonment at Nuremberg served only nine and 11 years respectively.118 The latter releases were justified on humanitarian grounds, as the offenders were seriously ill. The Rome Statute explicitly excluded all release of lifers before 25 years and does not provide any scope for such early humanitarian release. Close examination reveals just how inflexible the Rome Statute is on early release. No person or institution has the power to grant release of a person serving a sentence of life imprisonment prior to 25 years, even in the most exceptional of circumstances. In contrast, the Yugoslavia Statute makes provision for release to be considered following eligibility for either "commutation" or "pardon" in the State that is implementing the prison sentence.119 Commutation may be regarded as being substituted by the sentencing review that the Court is to conduct under the Rome Statute, but there has been no substitute for the latter. Pardon, as used here, may be regarded as referring broadly to the executive power to intervene directly to release a prisoner. It is true that the power to pardon may be criticised as not fully conforming to the standards of legality and as a poor substitute for a review procedure that automatically considers release of prisoners serving life sentences after a reasonable period, but that does not mean that it cannot serve a purpose in exceptional cases. The flexibility of the pardon means that it can be invoked at any time and used if, for some truly exceptional reason, release would be appropriate at any time before the stage is reached when 'commutation' or review would normally be considered. Another weakness of the procedure is that there is no provision for any intermediate situation between imprisonment and unconditional release. Although the initial life sentence must now be imposed because of the extreme gravity of the offence, the situation may still arise where the offender has met the criteria for release, but where further restrictions may be thought to be necessary for the purpose of incapacitating someone who is still 'dangerous'. The Rome Statute makes no provision for conditional release, which would give the offender a large measure of liberty but would ensure that further offences are restricted. The omission may be deliberate, as findings about future dangerousness are notoriously hard to make, particularly when, as in this instance, one would be considering an appropriate form of conditional release for someone who had 117

118 119

The minimum term in the Rome Statute of two-thirds of a fixed-term sentence is also very restrictive. Those sentenced to the longest fixed term of imprisonment (30 years) will serve longer terms than most of those sentenced to life imprisonment at Nuremberg before their release can be considered. Cf. Fife (n. 103) 991. Taylor (n. 4)612-618. Article 28 of the Statue for the International Criminal Tribunal for the Former Yugoslavia.

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International Criminal Justice committed a politically motivated offence 25 years or more ago. Nevertheless, the absence of this option may make the regime created by the Rome Statute even harsher than it appears at first glance. A critique of the provisions for early release should also include an analysis of the criteria for such release. Paragraph 4 lists two such factors specifically, viz. co-operation with the Court in its investigation and prosecutions, and more general assistance to the Court in allowing it to intervene in various ways. These are somewhat narrow bases for considering release, which may not apply equally to all offenders. Not all crimes offer opportunities for co-operation of this kind. Moreover, such co-operation may already have been taken into account at sentence. Paragraph 4(c) makes provision for the Rules of Procedure and Evidence to provide for further factors but they have to be "factors establishing a clear and significant change of circumstances sufficient to justify the reduction of sentence". It is not clear to what these "circumstances" refer. The equivalent rule made in terms of the Statute of the Yugoslavia Tribunal allows the gravity of the offence and the treatment of similarly-situated prisoners to be taken into account.120 Neither of these factors can be of relevance here, as they do not represent a change of circumstances. The earlier rule refers to "the prisoner's demonstration of rehabilitation"121 as a factor to be taken into account. "Rehabilitation" in this sense could be, in terms of article 110.4(c) of the Rome Statute, "a change of circumstances sufficient to justify the reduction of sentence". In the light of the concerns expressed by members of the International Law Commission in this regard, it is an important factor and one that may be included in the rules that have to be made in terms of article 110.4(c) of the Rome Statute. However, the question remains: why was it not included directly in the article itself? One answer may be that the idea that offenders of this kind could be 'rehabilitated' is itself controversial. One could also speculate that the "change of circumstances" formulation was used to provide a mechanism to allow changes in the surrounding political circumstances under which the original offence was committed to be considered in a re-evaluation of the extent to which the sentence originally imposed should be enforced. If so, this has been done in a particularly subtle way that does not contribute to the legal certainty that the Rome Statute as a whole is designed to ensure. One may add that paragraph 4 as a whole does not contribute to such certainty. It is unsatisfactory that some specific rules for conducting a sentencing review should be included in the primary instrument (paragraph 4(a) and (b)), while a further sub-paragraph (4(c)) makes provision for additional, arguably more important, rules, to be enacted in a secondary instrument. The principles that should govern the early release of sentenced prisoners, in particular those serving life imprisonment, have thus not been articulated in full.

Rule 125 of the Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia. Ibid. 195

Chapter 5 7. CONCLUSION This brief history confirms that the international community remains of the view that heinous offences against international law, which include the most serious crimes known to humanity, such as genocide, should be punished by the most severe form of punishment compatible with the principles of international human rights law. Notwithstanding the fundamental critique of life imprisonment that has been derived from these principles, it has been recognised at the international level as this form of punishment. That does not mean, however, that arguments based on human rights principles have played no part in the development of the specific provisions for the imposition and implementation of sentences of life imprisonment at the international level. This chapter has shown that the creators of the international penal system have grappled increasingly with the demands of ensuring that life imprisonment is not a disproportionately heavy punishment and is implemented in a way that recognises the demands of legality and the human dignity of offenders. This has not always been achieved. The judgments of the Rwanda and Yugoslavia tribunals in particular reveal little sensitivity towards the complex problems generated by the sentence of life imprisonment. The provisions for life imprisonment in the Rome Statute for the new International Criminal Court, however, show considerable progress. The Statute is not without its faults, but its careful restrictions on the power to impose life sentences and its structured release system set benchmarks for national systems that claim to be underpinned by the same principles. The international community cannot escape the reality that the system of life imprisonment it is proposing to apply in the Rome Statute is a compromise, and that many of its critics regard all forms of life imprisonment as likely to infringe, to at least some extent, the evolving international human rights norms about acceptable punishment. Even if a decision is taken now to entrench life imprisonment as a suitably severe punishment for the most heinous forms of the criminal conduct prohibited by international law, arguments of principle are likely to continue to be refined as international human rights law continues to develop. The ethical dilemmas presented by the sentence of life imprisonment cannot be resolved for all time by deciding that a degree of infringement of international human rights law is justified as a punishment, even for the most heinous crimes recognised by international law.

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CHAPTER 6

TAKING LIFE IMPRISONMENT SERIOUSLY?

1. INTRODUCTION Just how seriously is life imprisonment taken in the modern world? One simple answer is that life imprisonment is regarded as an acceptable and relatively unproblematic penalty, since it is very widely, although not universally, applied as a sentence. However, an important indication of the recognition of the extent to which life imprisonment may unjustifiably restrict the rights of offenders so sentenced must be the limitations that are placed on its imposition and on the manner in which it may be implemented. The most obvious conclusion of this study is that amongst countries that allow life imprisonment there are major variations in the limitations on when it may be imposed, on how it may be implemented and in when and how lifers may be released. It is clear that these varying limitations produce dramatic differences in the numbers of offenders sentenced to life imprisonment and actually serving life sentences in those countries. To some extent, the raw numbers speak for themselves.1 In 1999 there were 105 697 prisoners serving life sentences in the United States of America, 4206 in England and Wales and 1513 in the Federal Republic of Germany. These prisoners made up 10.7 percent, 8.4 percent and 3.1 percent of the total sentenced prison population in each of these countries. The countries of course do not have identical prison populations. In 2000 the proportion of sentenced prisoners per 100 000 of overall population was 476 for the USA,2 101 for England and Wales,3 and 70 for Germany.4 These further figures underline the prominent role of life imprisonment as a form of punishment in the USA. The USA not only has more prisoners serving life sentences than Germany, but such prisoners also comprise a greater percentage of the prison population in the USA than in Germany, the significance of which is heightened by the fact that a greater proportion of all inhabitants of the USA are sentenced to imprisonment than in Germany. In each instance England and Wales falls in a middle position. There is another striking difference: 25 554 of the lifers in the USA in 1999 were serving life without parole terms, that is sentences in The figures referred to in this paragraph for individual countries are drawn from the previous chapters, unless otherwise indicated. They are subject to the shortcomings expressed there and cannot provide exact comparisons. U.S. Department of Justice: Bureau of Justice Statistics, "Incarceration Rate, 1980-2000" in Key Facts at a Glance, . Home Office, Prison Statistics England and Wales 2000 (Cm 5250), London: HMSO, August 2001. Greifswalder Inventor zum Strafvollzug at . Statistics for 2000 were not available for Germany. It is assumed that the differences between 1999 and 2000 were relatively small. 197

Chapter 6 which life was the maximum as well as the minimum term. In Germany there were no such life sentences: all lifers are automatically considered for release after 15 years. In England no formal minima were imposed on the adults serving terms for life imprisonment for murder but in the case of all but 23 of these prisoners minima had been set, after which their release on parole would be considered routinely. The point of this brief account is not to make a comparison with general international validity. The number and proportion of prisoners serving life sentences in Germany, for example, although significantly lower than those in the USA or in England, are higher than in other western European countries, almost certainly because these countries generally do not make life sentences mandatory for murder.5 The numbers do alert us to the fact that in the jurisdictions that have been considered closely there are likely to be significant variations in the nature of the limitations on the imposition and enforcement of life imprisonment and in the degree to which such limitations are taken seriously. This chapter re-examines the adequacy of these very varied limitations on life imprisonment in the light of the standards that have been developed in international and national law for punishment in general that were discussed in Chapter 1. It also considers briefly why the impact of these limitations has been so restricted and what can be done to ensure that life imprisonment is subjected to continued critical scrutiny. 2. SEVERITY AND PROPORTIONALITY The most widespread objection that is advanced against a sentence of life imprisonment is that it may be too severe a penalty for the offence or offences committed by the offender. Stated in this form the proposition is that the potential loss of liberty until the offender dies may be unacceptable, notwithstanding the (uncertain) possibility of release at a later stage. When courts deal with this key limitation on life imprisonment they usually say that the sentence is disproportionately heavy. Underlying the proposition is the wider idea that a disproportionate sentence is a form of cruel, inhuman or degrading punishment. Such punishments are held to infringe the human dignity of the offender, who has not deserved such a loss of rights.6 In extreme cases no one would disagree with the justness of the proposition and few legal systems attempt to exclude proportionality requirements for the imposition of life sentences entirely from their constitutional or sentencing jurisprudence. Justice Rehnquist's footnote in Rummel v Estelle7, to the effect that, of course, a life sentence for a parking offence would be cruel and unusual in the Nicholas McGeorge, A Fair Deal for Lifers: a study on sentencing and review procedures for people sentenced to life imprisonment in Western Europe, Brussels: Quaker Council for European Affairs, 1990. Cf. the sentiment expressed, after an extensive comparative analysis, by the South African Constitutional Court in S v Dodo 2001 (1) SACR 594 (CC): "To attempt to justify any period of penal incarceration, let alone imprisonment for life ..., without inquiring into proportionality between the offence and the period of imprisonment, is to ignore, if not to deny, that which lies at the very heart of human dignity." (at 614g per Ackermann J). 445 US 263 (1980) discussed in Chapter 2.4. 198

Taking Life Imprisonment Seriously ? American constitutional sense, might have been intended rhetorically, but it underlines the universality of some requirement of proportionality in assessing life sentences.8 The question of whether a life sentence would be disproportionally severe as a penalty for a particular offence is a matter of judgement for whatever institution is called upon to make it. However, it is a judgement that is often clouded by the hope or belief that the sentence will be implemented in a way that will ensure the release of an offender after a period that will not be disproportionate to his offence. This highlights a core difficulty in assessing whether a sentence of life imprisonment, rather than a fixed period of imprisonment, is proportionate to a crime. A determinate sentence of imprisonment entails the loss of liberty for a specific period. As long as this period is within the reasonable life expectancy of the offenders subject to it, they can expect to be released at the end of the period at the latest. A judgement can be made about whether this maximum period is proportionate to the offence committed. Proportionality relative to other offences can be established by comparing the terms of imprisonment imposed for such offences.9 In the case of life imprisonment this maximum period is indeterminate. No such comparison is possible. Sometimes an attempt is made to make life sentences proportionate to different offences by introducing different minimum periods that must be served before release can be considered. For example, life imprisonment may be prescribed as a mandatory sentence for different drug offences, but the period that must be served before release can be considered may be set in relation to the quantity of drugs involved. This does not meet the objection, however, that there is no guarantee that the offender will not serve the maximum sentence, that is life imprisonment, for any of these offences and that this may be grossly disproportionate to the actual offence committed. It follows that, in order to meet the criterion of proportionality, a life sentence should only be imposed for a crime that is so serious that imprisonment until the end of the offender's life would not be disproportionally severe. (Whether it would be humane to do so is a separate question, to which we will return.10) The use of life imprisonment as a sentence in a system in which proportional sentences of imprisonment are the primary form of punishment for most grave crimes creates other difficulties as well. If, as is often the case in modern European penal systems, life imprisonment is the punishment reserved only for the most serious offences, it becomes the anchoring point of the penal scale. How fixed-term sentences relate to it must then be assessed. To do this logically is very difficult, if not impossible. How many years must be imposed for a crime that is half as bad as the most serious crime, if the sentence for the latter is life imprisonment? In practice, what happens is that an assessment, only loosely Even the attempt by two US Supreme Court judges in Harmelin v Michigan 501 US 957 (1991) (discussed in Chapter 2.4) to deny this minimum can be read as an aberration, based on a particular view of the limits of American constitutional law, and not a denial of the principle. Such an evaluation is of course not unproblematic but considerable thought has been given to how it can best be done. See, for example, Andrew von Hirsch and Nils Jareborg, "Gauging Criminal Harm: A LivingStandard Analysis", (1991) 11 Oxford Journal of Legal Studies, 1. See section 7 below. 199

Chapter 6 related to the life sentence,11 is made of what the heaviest sentence of imprisonment should be for the most serious offences not punished by life imprisonment. This term is then used to anchor the penal scale, with the offences for which life imprisonment is imposed being, in this sense, outwith the scale (and beyond the pale?). In this sense, life imprisonment is much like the death penalty, in that it is hard to relate it to the relatively severe penalties of fixed terms of imprisonment that make up the sentencing options for other offences. 3. LIFE SENTENCES FOR HABITUAL OFFENDERS? The strictures of the proportionality requirement are often avoided by arguing that there is something about an offender, usually the offender's past or future conduct, that justifies indeterminate detention in the form of a life sentence. This consideration arises where the offender is found to be an habitual offender or a dangerous offender or both. Being an habitual offender who does not present a significant risk of physical harm to others is the least persuasive version of this consideration. It is true that in Rummel v Estelle a bare majority of the US Supreme Court upheld the constitutionality of a sentence of life imprisonment imposed on a manifestly non-violent, small-time fraudster for a third petty offence, but this judgment may be, and has been, widely attacked for having failed to apply the constitutional proportionality test appropriately.12 (It can also be explained on the grounds of the likelihood of the offender's release on parole inhibited the court from applying a proportionality test fully.) Similarly, the international incredulity about someone sentenced in California to life imprisonment for a third offence, that of stealing a slice of pizza, can be explained on the basis of a common-sense

In Germany the maximum determinate sentence is 15 years. Fifteen years is also the term that has to be served before someone sentenced to life imprisonment may be considered for conditional release. However, someone sentenced to a fixed term of 15 years could be released conditionally after ten years, so there is a real difference. (See Chapter 4). In the Statute of Rome for the new International Criminal Court the maximum fixed term is 30 years while someone sentenced to life imprisonment can be considered for conditional release after 25 years. There is still some rough relationship between the two as someone sentenced to a fixed term of 30 years could be considered for conditional release after 20 years. (See Chapter 5. 6 c)). In England and Wales the relationship is even less clear, but still not entirely non-existent. Here there is only an informal understanding that fixed-term sentences should not exceed 22 years. (See Chapter 3.1) Such offenders would normally not be considered for release until they had served at least half their sentence, that is about, 11 years. Lord Woolf has recently indicated that for murder, which carries a mandatory life sentence, judges use 14 years as the point of departure for the stage at which they recommend parole to be considered. (See Chapter 3.4 b)(iii).) The actual period proposed may be longer or shorter than this. Discretionary life sentences often have far shorter periods that must be served before parole is considered, but they are not primarily conceived of as proportionate punishments. For a powerful recent analysis along these lines, see Paul H. Robinson, "Punishing Dangerousness: Cloaking Preventive Detention as Criminal Justice", (2001) 114 Harvard Law Review, 1435-1437. 200

Taking Life Imprisonment Seriously? application of a proportionality requirement, notwithstanding the offender's two previous felony convictions.13 4. DANGEROUSNESS AND RISK AS LIMITS ON PROPORTIONALITY The claim that an offender is dangerous, particularly a dangerous recidivist who poses a risk of serious violence to others, has proved to be a more acceptable ground for accepting the imposition of life imprisonment in the face of proportionality concerns. In this regard developments in English law, in interaction with the standards set by the European Court of Human Rights in its interpretation of the European Convention on Human Rights, are particularly interesting. For offences other than murder, life imprisonment can only be imposed in England if the offender is also dangerous. Indeed, the English courts were able recently to reassert partially the principle of proportionality in the face of a widely-framed legislative provision that decreed that life sentences should be imposed automatically for all offenders convicted of a 'serious' second violent offence unless exceptional circumstances applied. They did this by ruling that the intention of Parliament and the prohibition of inhuman and degrading punishments in the European Convention required that the legislation be interpreted to limit it to offenders who pose a risk to the public.14 Moreover, proportionality concerns have not been ignored entirely in imposing life sentences on grounds of dangerousness. In developing the common law on discretionary life sentences English courts have stressed that dangerousness must be balanced with seriousness. A minimum threshold of seriousness is required before a life sentence can even be considered. Thereafter, the more serious the offence the less the degree of dangerousness required to impose a life sentence - bearing in mind always that there must be an element of dangerousness to justify life imprisonment in non-murder cases at all. Also in the release of prisoners sentenced to life terms on these mixed grounds, proportionality requirements have gradually been introduced. The current English requirement is that, except where the sentence is mandatory life imprisonment imposed on an adult, the court that imposes the life sentence must also set an offence-related 'tariff period. After that period has been served, the release of the offender must be considered by another court-like body that meets the requirements of due process similar to those of a full trial but considers only the danger to society that the offender still may present. This makes explicit the relative places of proportionality and dangerousness in the life sentence. From a due process point of view this procedure is impressive. Unlike the mandatory life sentences for recidivists, which the US Supreme Court upheld in Rummel v Estelle, the initial sentence of life imprisonment in the English discretionary process is only To some extent this has been recognised recently in the USA itself. See Andrade v Attorney General of the State of California 270 F 3d 743 (CA 9 (Cal) 2001) discussed in Chapter 2.4. R v Offen [2001] 1 WLR 253, discussed in Chapter 3. 5. 201

Chapter 6 imposed after a court has considered all the individual aggravating and mitigating factors.15 Reasons for the decision have to be given in open court and the penal part of the sentence is itself appealable. Similar, although not equally full, procedural safeguards operate at the stage when the release of the lifer is considered. In sum, if it were to operate optimally, this procedure would meet the standards of due process for punishment in general. This English procedure is equally impressive for the way in which it clarifies the distinction between the offence-based component of the life sentence and the part based on dangerousness, but this does not answer the question of whether a life sentence is justified for this type of offence at all. It is instructive to compare the position of a discretionary lifer in England with that of an offender who is dealt with under one of the new laws in the United States designed to deal with so-called sexually violent predators. The latter are not sentenced to life imprisonment, but, on being found to be dangerous and suffering from something less than a mental illness, are detained for a further indefinite period after having completed their sentences. These laws quite rightly have been criticised widely as a form of double punishment, because they subject offenders who are not mentally ill to an indeterminate further period of detention. In crucial ways though, their effect is very similar to that of English discretionary life sentences. In both a period of detention beyond that imposed for the crime on the basis of retribution and deterrence has to be served because of a finding of danger to society, triggered not by the rules of mental health law but by the initial offence. Under the Kansas law, which was the subject of the controversial US Supreme Court decision in Kansas v Hendricks,16 the prescribed procedure contained most of the due process safeguards that an English lifer has when a 'court-like' committee of the Parole Board decides on his release. In one sense the offender in Kansas is better off. The State in Kansas has to demonstrate his dangerousness to justify his detention after he has served his sentence, while in the English case the initial life sentence has created a presumption of dangerousness (a sine qua non for imposing the sentence in the first place), which in practice is to be rebutted by a finding that the offender is not dangerous any more. In the light of this comparison an argument can be made against imposing life sentences for crimes for which they are not justified other than by a finding of dangerousness, and for asking the hard questions about whether further detention is justified after the punitive sentence has been served. There is another troubling similarity between the criteria for imposing the English discretionary life sentence and a further period of detention under the Kansas 'sexually violent predator' laws. In both instances the requirement of dangerousness is combined with a concern about the mental state of the offender, but the criteria for establishing this 'unhealthy' mental state are less rigorous than those set for civil detention where there

The mandatory life sentence for murder in England does of course not allow the weighing of these factors either. Also the 'automatic' life sentence for second violent offenders does not fully meet this standard, in spite of the wide interpretation given by the English courts to the power of the courts to impose a sentence other than life in "exceptional circumstances": see Chapter 3. 521 US 346 (1997) discussed in Chapter 2.6. 202

Taking Life Imprisonment Seriously ? has not (necessarily) been a criminal trial. This difference has drawn highly critical comment in America, where the Kansas criterion of a finding of 'mental abnormality' was seen as watering down the requirement of 'mental illness'. Previously, 'mental illness' together with a finding of dangerousness had been the minimum required by the US Supreme Court before a civil commitment could be made of someone who had not been convicted of an offence. In the case of the English life sentence the initial criterion, developed by the courts themselves, of an 'unstable character' led to them requiring medical evidence, although not of the same kind as would be required under the Mental Health Act. However, this evidential standard has been relaxed and such evidence is not now required in every case. The difficulty with both Kansas's 'mental abnormality' requirement and the English 'unstable character' requirement is that they are largely circular. The abnormality or instability is often simply the danger posed by the offender concerned. Notwithstanding these justifiably criticised shortcomings, one can see in these diluted 'mental' requirements some hesitation in both jurisdictions about imposing an indeterminate term of imprisonment (either directly in the case of the English discretionary life sentence or indirectly in the case of the American sexually violent predator laws) on offenders who would otherwise have been released after having served a fixed term, merely because there is a prediction that they are likely to be dangerous in the future. This praiseworthy hesitation is based, I suggest, on a deep concern about imposing a sentence that will be heavier than justified by the offence and therefore not proportionate to it. In my view, the attempt to find 'mental' criteria to justify the 'additional' indeterminate incarceration of offenders, who have been held to have criminal capacity and to be fit to stand trial for their offences, is to look for limitations in the wrong place. Instead, the justification for imprisoning dangerous offenders indeterminately at all should be examined directly and more closely. Before doing so, it must be noted that the insight that it is hard, if not impossible, to identify individual offenders who are truly dangerous because of individual pathologies, may be a double-edged sword. Zimring and Hawkins have pointed out with their customary perspicacity that recently there has been a shift from specific to general theories of incapacitation as justification for the disproportionately long detention of individuals.17 Measures such as 'three strikes and you are out' legislation are justified on the basis that they make it unnecessary for the judiciary or other experts to make difficult decisions about the dangerousness of individuals. Instead, whole classes of recidivists are deemed generally to pose such a risk to society that they should be routinely incarcerated for life. This approach underlies also the English legislation on automatic life sentences for offenders convicted for a second time of offences involving serious violence.18 Using life sentences as a form of general incapacitation of a class of offenders, who are all assumed to be dangerous, challenges the principle that sentences must be Franklin E. Zimring and Gordon Hawkins, Incapacitation: Penal Confinement and the Restraint of Crime, Brussels: Oxford University Press, 1995, (Ch 4 "The Jurisprudence of Incapacitation") 60-75. See Chapter 3.4 a) (iii). 203

Chapter 6 proportionate to the crime even more strongly than a life sentence based on a positive finding of individual dangerousness in a specific case. An attempt by the courts to assert, as the English courts have done in the face of such legislation, that the true intention of the legislator is that only the individuals who pose a continued risk to society should be imprisoned for life and that the courts should determine who they are, is a strategy of dubious value. The courts are asserting a power that is very hard to exercise. If they fail to identify an offender as dangerous and do not order his detention for life and he commits a further offence after release, they will be met by the criticism that they have failed to meet the incapacitatory objective of the legislation. On the other hand, if they assume dangerousness to be present where it is not, they will be imposing a disproportionally heavy sentence that cannot be justified at all. The better strategy would be the more direct one of imposing determinate prison sentences that are proportionate to the crimes committed and of dealing separately with mentally ill persons who pose a continued risk after they have completed their sentences. If applied as the legislature intended, the result of laws of this kind, which I believe are motivated by a desire for general incapacitation rather than the narrower concern of dealing with mentally ill dangerous offenders, is to produce life sentences that are so grossly disproportionate to the crime committed that they are inhuman and degrading. Widely drafted penal provisions for general incapacitation by life imprisonment are a direct affront to the most basic human rights and should be declared incompatible with the constitutional instruments that purport to uphold such rights. 5. DANGEROUSNESS TAMED? The question remains whether a more limited concept of dangerousness can be developed that allows it to be considered in dealing with offenders but which does not present a direct affront to the human rights principles that limit permissible punishments. Anthony Bottoms and Roger Brownsword have applied Ronald Dworkin's rights-based philosophy to this issue.19 They note that the key Dworkinian idea is that human dignity requires that the right of all people to equal concern and respect be recognised. This right must be enforced by the courts, who need to balance rights and, more importantly, protect individuals against the preferences of the majority, which may conflict with their right to equal concern and respect. Limitation through the criminal law on permissible punishment is one of the ways in which such protection is achieved. Any detention, criminal or civil, beyond that justified by the offence involves a denial of the rights of the individual. In Dworkin's words, we "should treat a man against his will only when the

Anthony E. Bottoms and Roger Brownsword, "Dangerousness and Rights" in John W. Hinton (ed.), Dangerousness: Problems of Assessment and Prediction, London: George Allen and Unwin, 1983, 9. For useful critique of their analysis, see Nigel Walker, "Ethical and Other Problems" in Nigel Walker (ed.), Dangerous People, London: Blackstone, 1996, 1. 204

Taking Life Imprisonment Seriously? danger he presents is vivid, not whenever we calculate that it would probably reduce crime if we did".20 Bottoms and Brownsword develop this concept of 'vivid danger'. They suggest that it be broken down into components by posing further questions about how serious the potential injury is, how soon and how often the injurious acts are expected to happen, and how certain it is that the person will act as predicted. Of these, the certainty factor is pivotal. As it increases, the danger becomes more 'vivid' and thus the seriousness and the immediacy of the danger must be evaluated too. Only if, on a combination of these factors, an offender presents a substantial threat to the rights of others should the danger be described as 'vivid' and the offender detained. Bottoms and Brownsword make it clear that on their test a sentenced offender should not be treated any differently when it comes to the evaluation of dangerousness: "During his prison term the prisoner is not treated on the same basis as an ordinary citizen. There are chronic disabilities: loss of liberty, restricted communications with outsiders, and so on. Whatever justification there is for such treatment, it terminates at the end of the normal term of imprisonment. At the end of the normal term the offender is entitled to be viewed as a full member of the human community, that is, treated again as an ordinary citizen. It is therefore surely beyond dispute that the right to equal concern and respect generates directly in the dangerous offender the right to release at normal term. For, if he is denied this right the dangerous offender is treated as less than a full citizen."21 Bottoms and Brownsword emphasise that this does not mean that in the evaluation of dangerousness the seriousness and the immediacy of the further danger presented by a convicted offender can be ignored. On the contrary, only in the case of convicted offenders is there likely to be enough evidence of 'vivid danger' to justify detaining them. A mere threat is unlikely to be evaluated as meeting the criteria. They point out though that, because dangerousness is so hard to identify, there is a real risk that, if the law allows the consideration of dangerousness too freely, the rights of the individual, particularly one convicted of a crime, are likely not to receive proper consideration as against the external preferences of the larger society. In their view, the 'vivid danger' requirement is so strict that only in some instances of murder or attempted murder is it likely to be met. Only in these very limited cases therefore, should the law provide for the extended detention of dangerous offenders. The arguments developed by Bottoms and Brownsword can be used to advance the analysis of life imprisonment in various ways. First, the developed concept of 'vivid danger' is a useful tool in assessing whether an extended period of detention in the form of a life sentence, or otherwise, should be allowed at all. Put slightly differently: it provides a powerful argument for the proposition that only a 'vivid danger', in the sense that that concept has been expanded by Bottoms and Brownsword, justifies departure Ronald Dworkin, Taking Rights Seriously, London: Duckworth, 1978, 11. Bottoms and Brownsword (n. 19) 18. 205

Chapter 6 from the proportionality principle. This would mean that individual cases, where a finding of dangerousness is required before a life sentence may be imposed, would have to be subject to perhaps a more careful analysis than is currently the case in England. It would almost certainly mean that far more of the life sentences currently imposed in the United States of America would be open to proportionality challenges. Secondly, the strong case, recognised by Bottoms and Browns word, for legislative restrictions on the consideration of dangerousness as a factor in the imposition of extended sentences raises questions about the category of offences for which courts have the discretion to impose life sentences. The current English list of offences for which such sentences may be considered is certainly wider than is justifiable according to their theory. However, its restriction, albeit not quite watertight, to serious violent and sexual offences, can be debated rationally in Bottoms and Brownsword's terms. The German restriction of discretionary life imprisonment effectively to homicide related offences is obviously closer to their thinking. Thirdly, Bottoms and Brownsword provide support for questioning the combination of what are now formally recognised, at least in English discretionary life sentences, as two distinct elements, viz. the punitive and the preventive. If convicted prisoners are really to be treated with equal concern and respect once they have served their prison terms there is a strong case for assessing their dangerousness completely separately, lest punitive concerns cloud the assessment of risk and the need for preventive detention. This would clarify the difference between proportionality of sentence based on the seriousness of the offence and the degree of blameworthiness of the offender, on the one hand, and a wider standard of proportionality that should apply to all State actions that impinge on individual rights, on the other.22 Once one begins to think along these lines one cannot avoid returning to whether it is not desirable to have a separate track to deal with those offenders who present a demonstrable danger of committing further serious offences. The German preventive detention measures are an example of such a second track. In the form that they existed prior to 1998 at least, they were limited formally, in that they could not be invoked unless the offender was a recidivist convicted of serious crimes. They were also limited substantively, in that it had to be demonstrated that such an offender had a tendency towards engaging in a relatively narrowly defined form of socially dangerous conduct in the future. Even then the problem remained that determining the existence of such a tendency in an individual offender was a problematic enterprise. The 1998 amendments watered down the tight safeguards by making both the formal and substantive limits less restrictive and thereby increasing the risk that indefinite detention could be imposed too easily. In other words, the danger to be avoided by the detention measure would not necessarily be sufficiently 'vivid' to meet Bottoms and Brownsword's criteria. The distinction that I am proposing is that between proportionality based on the Schuldprinzip in penal law, on the one hand, and that based on the more general Verhaltnismafiigkeitsprinzip in constitutional law, on the other: see Tatjana Hornle, Human rights issues in substantive criminal law and sentencing: the German constitutional doctrines, unpublished paper presented in Cambridge on 5 October 2001. 206

Taking Life Imprisonment Seriously? The recent German developments do not mean, of course, that a second track cannot be constructed that offers greater protections to the rights of the individual offender. A general proportionality principle that would constantly weigh the increasing burden being placed by imprisonment on an individual offender subject to preventive detention against the common good served by it, is one way of doing it. This should ensure that preventive detention is not carried out for a whole life. A simpler solution is to have an upper limit. What this limit should be, is inevitably somewhat arbitrary, in the same way as deciding what offences should trigger an inquiry into dangerousness is arbitrary, but at least it provides a safeguard for an evaluation process that is notoriously hard to do with any degree of certainty. The initial German limit of ten years on a first term of preventive detention and the absolute upper limit on preventive detention under the English system that existed at the beginning of the twentieth century are examples of such thinking. The fact that legislatures have been prepared to contemplate such limits, even where theoretically the danger presented by the offender might not by assuaged, is an indication that the harshness of fully indefinite detention, effectively a form of life imprisonment, is recognised. 6. LIFE IMPRISONMENT FOR THE MOST SEVERE CRIMES? The discussion thus far has concerned life sentences that are imposed for crimes for which a strong prima facie case could be made that a term of life-long imprisonment would be disproportionate. We have seen how such sentences have been defended, both on the pragmatic ground that they are not really implemented as life sentences, but more importantly, that they are not imposed because of the heinousness of the crime alone, and on the ground that in fact they were justified by the additional factor of dangerousness. In their developed form such extensions have been administered almost as second sentences. But what of life sentences for the most serious crimes, those that would demand the ultimate penalty that a society is prepared to impose? Is a mandatory life sentence automatically justifiable for such crimes? And if so, may it be a sentence without the prospect of release, considered automatically at some fixed point that can realistically be expected to fall within the life-time of the person serving the sentence? The extreme example of such a sentence must be the mandatory life sentence without the prospect of parole for the possession of drugs upheld by the US Supreme Court in Harmelin v Michigan. It was also the ultimate penalty that could be imposed in the State of Michigan at the time, as Michigan did not provide for the death penalty. In addition to the prescribed sentence for the possession of drugs, Michigan mandated life without parole only for dealing in drugs and first-degree murder. In this instance the primary proportionality-based challenge to the sentence was still a direct one. Most critics would dispute whether possession of drugs was a crime for which an automatic sentence of life without parole could ever be proportionate. The attempt by Justice Kennedy to suggest that the real sentence could be less than life because of the exercise of executive clemency and therefore that the sentence was perhaps not quite as radically disproportionate, was not a solution to the proportionality challenge. The hypothetically 207

Chapter 6 reduced life term would be imposed by means that would not meet even the most minimal standard of the application of due process to the imposition of punishment. But what about murder, symbolically the most serious crime in all the national jurisdictions that have been considered? What is striking about the three national jurisdictions that we have examined, is that they all provide for mandatory life sentences for murder. It is true that in the USA life imprisonment is often the lesser alternative to capital punishment and, as we have seen, partially for that reason, examined less critically and subject to fewer procedural safeguards than the death sentence. However, the difference could be expressed in another way. In the United States the ultimate penalty (death) is not imposed for all murders but is reserved, on constitutionally enforced proportionality grounds, only for the most serious murders. In its imposition it is subject to procedural guarantees and safeguards similar to those applied in England to discretionary life sentences. In England and Germany the ultimate penalty (life imprisonment) is imposed for all murders regardless of how serious they are. Does that mean that proportionality considerations and close scrutiny of due process concerns are excluded in respect of life imprisonment for murder in England and in Germany? In practice the answer is a cautious no, for in both countries the majority of prisoners sentenced to life imprisonment are released from prison after a decision-making process in which the relative seriousness of the murder they committed is a key, if not the deciding, factor. When one examines the decision-making process for the release of murderers serving life sentences, it seems as if it too is determined by two factors, viz. a penal element that ideally is proportionate to the degree of culpability of the offender (die Schwere der Schuld) and an element of preventive detention that is enforced because of the alleged further dangerousness of the offender. If this practice were accepted as a reflection of the essence of the sentence, then a powerful case could be made for implementing the life sentence for murder in the same way as the discretionary life sentence is now implemented. It would mean that the sentencing court should determine the penal element appropriate for the particular murder committed by the particular offender and, after that period had been served, a further court-like body should order the release of the murderer when he ceased to be dangerous. In this way, notwithstanding the criticism of discretionary life sentences that has been advanced, the life sentence for murder would be implemented in a way that gives scope for a defence against claims that it is disproportionate and implemented without sufficient attention to the principles of legality and due process. As we have seen, the mandatory English life sentences are implemented by a procedure that follows this two-stage process but does not meet the sophisticated standards that have been developed for its discretionary counterpart. This is primarily because, at the stage of deciding both whether the penal element of the sentence has been served and whether the offender is not dangerous any more, the courts may be overruled by a politician, the Home Secretary. This, together with some of the procedures, infringes against the requirements of due process. It also allows the Home Secretary to take into consideration public policy factors that are claimed to be wider than the punishment that 208

Taking Life Imprisonment Seriously? fits the specific crime or the continued dangerousness to the offender, viz. the 'responses of the community'. The difficulty with this "third phase"23 is that it undermines the plausibility of the claim that the release procedures ensure that the life sentences imposed on all persons convicted of murder are implemented in a differentiated way, so that they are not disproportionate in outcome, if allowance is made for 'extra' imprisonment for those who are dangerous. The somewhat shadowy existence of the third phase in England indicates that even the authorities are embarrassed by this obvious departure from legal certainty in the implementation of English sentences of life imprisonment for murder. The gross unfairness of the way mandatory life sentences for murder may be implemented in England because the Home Secretary exercises this power was exposed in the Thompson and Venables case, where, as a result of a public outcry, the Home Secretary upped the penal tariff period suggested by the trial judge from eight to 15 years. The rejection of various aspects of this intervention by the House of Lords and European Court of Human Rights has been discussed in full in Chapter 3.24 The underlying logic of this rejection is not unique to children though. While it is true that their degree of guilt might be reduced by their less developed moral sense and that therefore the penal period was likely to be shorter than for an adult who had committed the same crime, the simplest explanation for the findings of the appellate courts is that, once that period had been imposed, it became a sentence of the court. The need for any further detention should have been determined solely by whether the offenders remained dangerous and required the same due process safeguards as those that had been developed for discretionary sentences. The German 'solution' to the danger that mandatory life sentences for murder might result in grossly disproportionate sentences in individual cases does not have the weakness that new factors are introduced or that the decision on the effective length of individual sentences are taken by politicians rather than courts. Indeed, the complicated German procedure for the release of lifers was introduced to ensure legal certainty, where previously politicians had taken decisions with virtually unfettered discretion. For those offenders whose guilt is not 'particularly heavy', the life sentence has effectively been reduced to a fixed-term sentence of 15 years, after which a second court decides on whether the offender is still dangerous. Even this is potentially problematic, for there might be a murder for which an even lesser sentence would be proportionate and the procedures for departure from fixed sentences, which the German Criminal Code provides for other statutorily prescribed sentences, are not available for murder. The major difficulties in the German system arise, however, where, because the offender is highly blameworthy in the context of the specific offence committed,25 after the offender has served 15 years, the second court sets a provisional release date on the basis of a mixture of punitive and preventive grounds. One cannot but agree with Judge Stephen Livingstone and Tim Owen, Prison Law, 2nd ed., Oxford: Oxford University Press, 1999, 393. See Chapter 3.4 b) (iii). The German phrase, "die besondere Schwere der Schuld" captures what needs to be considered more clearly than I have been able to in translation. 209

Chapter 6 Mahrenholz in his memorable dissent in the 1992 judgment of the German Federal Constitutional Court that this procedure is not a fair way of determining a proportionate sentence. His solution, as we know, is the radical one. The constitutional requirement of proportionality requires that the life sentence should cease to be mandatory even for murder. It could be argued further, although Judge Mahrenholz does not do it quite so directly, that life imprisonment should only be imposed for those murders where the seriousness of the guilt of the offender justified such a heavy sentence. (Where the guilt was less but the offender was genuinely dangerous preventive detention could logically also be an option for a murderer.) A discretionary life sentence for murder is of course the model opted for by almost all penal reformers in England who have attempted to change the law relating to the punishment of murder in that country. Powerful support for such a reform is to be found in the Statute of the proposed International Criminal Court that makes provision for a term of life imprisonment only "when justified by the extreme gravity of the crime and the individual circumstances of the convicted person".26 If even genocide is not automatically punished by life imprisonment, the case of the mandatory life sentence for a single murder is weakened significantly. These gradualist reformers might well be tempted to look to the United States of America and specifically to the relatively sophisticated 'super due process' rules that have been developed to decide for which murders the death penalty may be imposed and to ensure only 'very serious murders' are punished in this way. However, even if one believes that that process is the best available to determine what cases deserve the ultimate penalty it is not without problems. The famous comment made by Justice Blackmun after many years on the US Supreme Court bench, that it has not proved possible through procedural innovation to establish an equitable system to identify effectively those worst murders, should give pause for thought.27 Making life sentences discretionary even for murder will certainly not solve all the problems of proportionality and due process. One way of looking at it would be to say that in the ideal system there should be some trade off between seriousness and dangerousness in murder cases as well. A murder that was particularly serious could be defined as one for which, at minimum, a fixed term of, say, 20 years could be imposed. If the murderer were dangerous as well, the appropriate sentence would be life imprisonment with release being considered on a determination of whether the offender was still dangerous at the stage when he would have been considered for release if he had been sentenced to a fixed-term sentence - i.e. after ten or more years. Such an approach is defensible as far as it goes, but subject to all the difficulties raised in respect of dangerousness assessments in the previous section. The implication of the argument is that even the murderer whose crime was 'particularly serious', should, if the heinousness aspect of the crime allows for a term reasonably likely to fall within the natural life-span of the offender, be sentenced to such 26 27

Article 77.1 (b). Callins v Collins 510 US 1141 (1994) at 1157.

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Taking Life Imprisonment Seriously? a fixed term and not to life imprisonment.28 The more difficult question arises if it is conceded that there are some murders that are so serious and the guilt of the offenders so considerable that life imprisonment is justified for them, even if there is no indication that the particular offenders are dangerous. Does this mean that they should never be released? On the argument thus far, release must always be considered when an offender, even a murderer, has served the penal part of the sentence and it must be allowed if the offender is not dangerous any more. But this does not assist the offender who is not being detained because of dangerousness but because of the seriousness of the offence alone. This can only mean that the question implies asking whether a life sentence where the penal part of the sentence is a full life sentence and there are therefore no prospects of release, can be justified. This is a question that courts, like most of us, find uncomfortable to face. The American courts have of course never considered the issue, but there is little doubt that they would find such sentences unproblematic. However, there are indications that even English and German courts are prepared to countenance such sentences, albeit indirectly. The most interesting English decision in this regard is in the case of Myra Hindley, who argued that, notwithstanding her heinous crime of participating in the sadistic murder of a number of young children, she should be considered for release as she had served more than 30 years in prison. Her application was rejected by the House of Lords,29 which upheld a "whole life tariff and noted that there were 23 other English lifers in the position that they might never have their release considered on the grounds that they were no longer dangerous (if they had ever been when they were sentenced.) The issue of dangerousness would not arise, as their continued detention was justified by the seriousness of their offence and their degree of culpability alone. I have been highly critical of the procedure for considering the release of murderers in England: that is not the point here. The essence of the decision in Hindley is that even if there were a better procedure, for example, where the trial court determined the period to be served before the offender's release could be considered by a second court, that first period could be 'a whole life'. That would mean that the parole board would never get to consider the possibility of releasing the offender on grounds of absence of danger. The German Federal Constitutional Court has not been as direct. Formally it has eschewed whole-life sentences. However, it has upheld the decision by a second court to continue the detention of a lifer, who had already served 22 years, on the grounds of the seriousness of the guilt of the offender where the (multi)-murderer concerned was already 88 years old and manifestly not dangerous.30 Once again, one should bracket the procedural criticism that this penalty was not being imposed directly by a trial court. Instead, one should recognise that in these relatively rare cases direct proportionality

The question of the aged murderer is a red herring, for an exception can be made by reducing the term of years on compassionate grounds if necessary, without upsetting the major argument. In R v Secretary of State for the Home Department, ex Parte Hindley [2000] 2 All ER 385 (HL), also discussed in Chapter 3.4 b) (ii). BVerfGE 72, 105, discussed in Chapter 4.6. 211

Chapter 6 challenges have had a minimal effect on limiting either the imposition or the implementation of life sentences. 7. HUMAN DIGNITY Some nagging doubts remain. Even in these worst cases legal systems have not been prepared to uphold, without qualification, the fully implemented life sentence, that is life imprisonment as a sentence as final as the implemented sentence of death inevitably is. This ambiguity is best revealed in the question of life sentences for children. With the exception of the United States, there is now unanimous international acceptance that children should not be sentenced to life imprisonment without the possibility of release.31 With the recognition of this right comes, as we have seen, the right to due process in the release process. However, it goes further. It is certainly possible to imagine a crime of such heinousness that, even allowing for the reduced culpability of a 17-year-old, one may be tempted to impose a life sentence without the prospect of release. Nevertheless, the prohibition is absolute. The basis for the absolute prohibition of such a penalty is the inherent human dignity of the children. With it, particularly in the case of children, comes the related idea that notwithstanding what they have done, there is a chance that they might still rehabilitate themselves and lead a crime-free life in the future and that their human dignity demands that they never lose the opportunity to do so. The argument that such a life can only be led outside the prison has been made again and again, both by those who wish to outlaw the life sentence completely and those who find its implementation to the full, unacceptable. This analysis, based on human dignity, contradicts directly the idea of any sentence for a whole life. It applies to both adults and children. In neither case can one have it both ways. This ambiguity about what is meant by a life sentence is best disguised in the English law dealing with the whole life tariff imposed on adult murderers, where there is still a mechanism for release, in this instance the Home Secretary exercising discretion to order a release. In legal terms, the Home Secretary may not fetter his discretion entirely but must be prepared to reconsider his decision. Of course, the offenders can do nothing to alter their degree of guilt for the offence that led to the sentence being imposed in the first place. Assuming that dangerousness is not a consideration in that the offence itself justifies life-long detention, what basis can there be for ever releasing them? The answer can only be some humanitarian concern, that is a residual concern with the human dignity of the offender. Research on the effects of long, indeterminate terms of imprisonment has not been clear enough to persuade the courts or a significant part of the public that such sentences are inherently incompatible with the norms of human dignity.32 It is possible that further empirical research could influence policy development on this question. In See Article 37 (a) of the Convention on the Rights of the Child, discussed in Chapter 1.3 c). Evidence of the effect of life imprisonment on prisoners was considered by the German Constitutional Court in 1977: see Chapter 4.4. See also the discussion in Chapter 3.4 of empirical research on lifers in England. 212

Taking Life Imprisonment Seriously? practice, at the moment, it is only when the offender has served a very long period or is old and dying that the degradation of human dignity, which serving a full-life sentence entails, becomes vivid and the authorities may be stung into action. In English law the only mechanism for reflecting this is the residual discretion of the Home Secretary, which is of course subject to all the shortcomings of the royal prerogative of mercy. German law appears to be clearer in this regard. The key 1977 judgment of the Federal Constitutional Court33 recognises that a life sentence fully implemented invariably entails the total loss of human dignity and the related denial of the controversial right to rehabilitation. The procedural reforms that the Court mandated were required to deal with this. The elaborate release mechanism that emerged following the judgment was designed to ensure not only that the life sentence was not disproportionately long but also that it was not implemented in a way that undermined human dignity by suppressing all hope of release. The difficulty that German law too has faced, is that the positive doctrine of resocialisation, which it has developed as a prop for the human dignity of the offender, logically applies only if the reason for further detention is dangerousness - a risk that the offender can diminish by becoming 'resocialized'. The criteria for the release of the offender whose grossly heavy guilt requires a sentence longer than his natural life remain unclear. It is perhaps for this reason that the relationship between unexpiated guilt and continued dangerousness in the decisions of the German courts responsible for ordering the release of the most serious offenders remains so confused. The same problem is inherent in the decision of the constitutional courts in other countries as diverse as France,34 Italy35 and Namibia,36 which have explicitly recognised that an offender sentenced to life imprisonment has a fundamental right to be considered for release but have not clarified the basis for the consideration of such release in the case of the most serious offenders. In these hardest cases the decision-making is not much more clearly rule-bound than the residual discretion that the English Home Secretary is compelled to exercise. For the sake of completeness, it should be noted that the criteria for release developed hitherto for offenders against international criminal law provide no clarity in these hardest cases either. It is at this point that the radical abolitionist solution implemented in some jurisdictions becomes of interest. The most prominent arguments are those of Spanish jurists who have carried through the logic of the argument that a right to resocialisation, anchored in the human dignity of the offender, means that each offender must be given a realistic opportunity to return to society to exercise the basic freedoms that they may have

33 34 35 36

BVerfGE 45 187 discussed in Chapter 4.4. Decision nr. 93-334 DC of January 20, 1994 of the Conseil Constitutionnel. Recueil des decisions du Conseil Constitutionnel 27, 29 paras. 9 and 13 (1994). Corte cost, sentenza, September 27, 1983, nr 274, Foro Italia. 1, 2333. S v Tcoeib 1996 (1) SACR 390 (NmS). 213

Chapter 6 learnt to use responsibly. It follows, they argue, that life sentences should not exist, lest this right be infringed.37 The failure to grasp the procedural nettle and develop clear rules to guide the exercise of the release discretion in the hardest cases, but at the same time the insistence that there should be some such procedure, reveals the depth of the ambiguity about life imprisonment. It suggests that in Germany, in England and Wales, and at the international level there are real concerns that a fully implemented life sentence may be an inherently inhumane and degrading form of punishment. It is a tacit admission that life imprisonment may be inhumane and degrading, not merely because it places a disproportionate restriction on the offender on whom it has been imposed but because its shortcomings are more fundamental. It is worth pointing out that this ambiguity appears to be strikingly absent in the United States of America. In that country in 1999 more than 25 000 prisoners were serving sentences of life without the prospect of parole, that is sentences in which the effective minimum term of the sentence is natural life. All these prisoners are effectively in the same position as the hardcore of fewer than 30 lifers identified in the Hindley case in England facing the prospect of never being considered for parole, yet there has been no legal or social controversy about this. The harsh but inescapable conclusion is that the failure, in the 1970s, of the argument based directly on human dignity to persuade a majority of the US Supreme Court that the death penalty should be outlawed entirely, has greatly impoverished American penological thinking. The fundamental issues raised by such life sentences are simply glossed over without any further dignity-based analysis of their inherent acceptability.38 8. PRACTICE The re-examination of life imprisonment against the human rights standards posited in Chapter 1 reveals that there are major shortcomings with life imprisonment as it is currently being imposed and implemented. Some of the shortcomings do not challenge the sentence directly. They nevertheless require action. Life imprisonment is often disproportionately heavy for the crimes for which it is being imposed. This is both because it is imposed in individual cases on offenders whose crimes do not justify a life sentence and because it is made mandatory for a class of offences, all of which are not sufficiently serious to justify its use. Sometimes it is used as a preventive measure without the full justification that the offender subjected to the life sentence is so dangerous that this form of intervention is required. Other common defects are in the implementation of the sentence. Often there is no clear indication that part of a life sentence is a form of preventive detention that therefore See Jose Cerezo Mir, "Das neue spanische Strafgesetzbuch von 1995", (1996) 108 Zeitschrift fur die gesamte Strafrechtswissenschaft, 657; Julio Barbero Santos, "La reforma espanola en la transicion a la democracia", (1978) 1 Revue Internationale de Droit Penal, 63. The growing discussion on how to deal with elderly prisoners simply underlines this point. 214

Taking Life Imprisonment Seriously? needs to be treated differently. Even where this is done, the implementation of life sentences leaves much to be desired. The procedures for eventually releasing lifers may be challenged on grounds of due process and more fundamentally on whether they recognise the human dignity of the offenders serving the life sentences and allow them the possibility of rehabilitation leading to life in a free society. These concerns lead to the fundamental question of whether a life sentence that inevitably allows for persons to be detained for the whole of their lives and never to return to society, can ever be justified, even for the most heinous offences. The question that remains to be answered is why there has been so much support for the widespread use of life imprisonment and tolerance of its demonstrable shortcomings. Part of the answer lies in the uncertainty about what is meant by life imprisonment. With this insight we have come a full circle, for we started in Chapter 1 by noting the ambiguity that surrounded the definition of life imprisonment. The definitional uncertainties are themselves significant because they may hold a clue as to why life imprisonment has not always been given the attention it deserves. The reality of life imprisonment is harder to grasp than the death penalty. It is trite to note that enforcing a death sentence means the end to human life while a life sentence allows a person to continue to live in restricted circumstances. What these restrictions mean is far from clear. In earlier centuries they could be conceived of as a period of intense physical deprivation combined with hard labour that would usually result in an early death in prison. That image has changed, however. In modern times loss of liberty by imprisonment is well entrenched as a legitimate punishment regulated by law in such as a way that, in theory at least, the fundamental rights of prisoners are recognised and they are not subject to hard labour. In addition, there may be the perception that someone sentenced to life imprisonment will be released more or less automatically after having served a 'reasonable' number of years. The relative absence of rigorous analysis of the meaning of life imprisonment may be explained also by pragmatic considerations. These considerations are linked directly to the fact that life imprisonment is still seen in many jurisdictions as the natural and lesser alternative to the death penalty - and therefore not to be scrutinised too strictly, lest the campaign against the death penalty be undermined. Even where the reintroduction of the death penalty is not a realistic threat, there is the consideration that symbolically the most serious crime (murder) should be met by the most drastic penalty (life) and that finegrained considerations of proportionality should be eschewed. These general considerations of definition and political tactics may explain why issues surrounding life imprisonment have made an unattractive topic for penal reform movements that seek a popular base. To this may be added the emergence of popular punitiveness as a strand in current social thought that encourages harsher punishment of criminals without pausing to analyse closely whether the intention is to impose these punishments for retributive, deterrent, or incapacitatory purposes. These broad tendencies are not, however, monolithic. We have seen too how, across jurisdictions and internationally, remarkably similar general principles have emerged to judge the acceptability of punishments, including life imprisonment. The idea that 215

Chapter 6 punishment should not be inhuman or degrading, that it should respect human dignity and that it should meets standards of legality and due process in its implementation are wellnigh universally accepted. They are cultural resources available to legislatures that provide for life imprisonment and to courts that must test the acceptability of the imposition and mode of implementation of life sentences in diverse circumstances. Much of this book has been concerned with considering how these general principled restrictions on the use of punishment have been interpreted and applied to life imprisonment. It is not always a pretty story. At times there appears to have been an almost wilful blindness to the consideration of the implications of these ideas. Instances can be found in all the areas studied of politicians denying the logic of the general principles they purport to support when faced with a popular outcry, as in the case of Thompson and Venables in England. Even more cravenly, politicians simply assume, without evidence, that popular sentiment would be upset by actions that ensure closer adherence to principle. One such assumption is that the public in England and Germany would be upset if mandatory life sentences for murder were to be abolished to ensure that sentences grossly disproportionate to the specific offence are not passed. The testing of legislative and administrative acts against general principles, whether such principles are entrenched in a Bill of Rights or not, is the function of the courts whether national or, particularly in Europe, regional. The extent of the powers of the courts varies from society to society, but within this variation all courts must perform the same function. In this regard too, I have been critical of many of the judgments of the courts, particularly where the judges have recognised the principles involved and have had the power to apply them and have then refused to do so, such as Justice Kennedy in Harmelin v Michigan. The judicial discourse on life imprisonment is particularly important because at its best it has tested the sentence of life imprisonment against general principles. If no court of final instance39 has been brave enough to abolish the sentence directly, as has been the case with the death penalty,40 their interventions have both influenced when the sentence may be imposed and how it must be implemented. Interventions aimed at determining how to decide when a prisoner serving a life sentence is to be released have been particularly interesting, as they have come close to changing a life sentence into 39

40

Other courts have on occasion argued that life imprisonment was unconstitutional and should therefore be outlawed entirely. The judgment of the State Court in Verden in Germany, discussed in Chapter 4.3, is an example. Another is the judgment of Judge Levy in S v Nehemia Tjijo in Namibia in 1991 (unreported but quoted at length in S v Tcoeib 1993 (1) SACR 274 (Nm)). Judge Levy argued directly that life imprisonment is inhuman and degrading and therefore contrary to the Constitution of Namibian. It was not ameliorated by the possibility of early release. This decision was, however, overturned in S v Tcoeib 1996 (1) SACR 390 (NmS) by the Supreme Court of Namibia, which specifically followed the 1977 decision of the German Federal Constitutional Court to the effect that the harshness of a life sentence could be ameliorated by an appropriate release procedure. The Court found that the existing Namibian parole system, if administered according to these constitutional requirements, would give even prisoners sentenced to life imprisonment a realistic prospect of release. Cf., the decision of the Constitutional Court of Hungary (23/9/1990 (X31)) and the 1995 decision of the Constitutional Court of South Africa (S v Makwanyane 1995 (3) SA 391 (CC).

216

Taking Life Imprisonment Seriously? something else; a fixed-term sentence and a separate preventive detention order. Yet no serious attempt appears to have been made to ensure that offenders who have served the penal element of their sentences are detained in conditions more comfortable than those that ordinarily prevail in prison. Judicial decisions on life imprisonment are also very important because they have expressed concerns about the acceptability of the penalty, either specifically or in general, in terms of human rights principles, often cast as principles of constitutional law. Where the courts suggested a modification to the way in which the penalty was imposed or implemented, the effect of such modifications could be judged in terms of these same principles. The impact of the discourse of principle is most clearly seen in Germany, where the movement for the abolition of life imprisonment argues for their ideal on the grounds that the standards of the Constitution must be met. In England too, the extensive extra-curial judicial involvement in debates about the desirability of change have been cast in similar terms of principle, albeit that the judges have sought the modification rather than the abolition of life imprisonment. 9. CONCLUSION In my view, it is this continued interaction between principle and practice that is most likely to ensure that, rather than being accepted unthinkingly, life imprisonment will be taken seriously now and in the future. Although there is no indication that life imprisonment is being used less, the refinement of the arguments about it in England and Germany and elsewhere, as well as its qualified acceptance as the ultimate penalty in international criminal law, suggest that, at very least, the form and function of life imprisonment remain disputed. There are choices to be made. Legislatures and courts have the scope not to follow popular sentiment but to undertake a principled analysis of life imprisonment. Whether this will lead to procedural changes only, or whether the logic of the changes will be to move towards the more widespread abolition of life imprisonment itself, remains to be seen.

217

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232

TABLE OF CASES

United States of America Andrade v Attorney General of the State of California 270 F 3d 743 (CA 9 (Cal) 2001) 69, 201 Bordenkircher v Hayes 434 US 357 (1978) 69 California v Ramos 463 US 992 (1983) 63 Collins v Collins 510 US 1141 (1994) 210 Cannon v Gladden 281 P2d233(Or 1955) 48 Coker v Georgia 433 US 458 (1977) 64 Connecticut Board of Pardons v Dumschat 452 US 458 (1981) 50 Druden v California 148LEd2d 1027(2001) 63 Enmundv Florida 458 US 782 (\982) 64 Foucha v Louisiana 504 US 71 (1992) 73 Furman v Georgia 408 US 238 (1972) 48, 54, 62-63, 67 Greenholz v Inmates of Nebraska Penal and Correctional Complex 442 US 1 (1979) 50 Gregg v Georgia 428 US 153(1976) 63 Hampton v Kentucky 666 S W 2d 737 741 (Ky 1984) 73 Harmelin v Michigan 501 US 957 (1991) 53, 66, 68-73, 199, 207, 216 Harris v Wright 93 F 3d 581 (9th Cir. 1996) 72 In re Lynch 105 Cal Reptr 217 (1973) 47-48, 64-65, 71 Kansas v Hendricks 521 US 346 (1997) 74, 76, 202 Naovarath v State 779 P 2d 944 944 (Nev 1989) 73 0'DellvNetherland52\ US 151 (1997) 57 O'Neil v Vermont 143 US 323 (1891) 8 People v Bullock 485 N W 2d 866 (Mich 1992) 54, 71 People v Lorentzen 194 NW 2d 827 (Mich 1972) 48 People v O'Roark 52 Cal 870 (Ct App 1996) 71 People v Ruiz 52 Cal Reptr 2d 561 (Ct App 1996) 71 People v Superior Court (Romero) 53 Cal Reptr 2 d 789 (1996) 71 People v Superior Court (Romero) 37 Cal Reptr 2d 364 (Ct App 1995) 61-62 Proffittv Florida 428 US 242 (1976) 63 Ramdass v Angelone 530 US 156 (2000) 57 Riggs v California 521 US 1114(1999) 69 Robinson v California 370 US 660 (1962) 73 Rummel v Estelle 445 US 263 (1980) 59, 64-65, 198, 200-201 SchickvRead4l9U.S.256(l974) 54 Simmons v South Carolina 512 US 154 (1994) 57 Solem v Helm 463 US 277 (1983) 65-68,70 Stanford v Kentucky 492 US 361 (1989) 71 State v Evans 245 P 2d 788 (Idaho 1952) 48 Thompson v Oklahoma 487 US 815 (1988) 71 Trop v Dulles 356US86(1958) 8, 11,47-48 233

Table of Cases Weems v United States 217 US 349 (1909) Workman v Commonwealth 429 SW 2d 374 (Ky 1968)

8,30,47,64,67 48

England and Wales Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 225 112 Attorney-General's Reference (no. 53 of 1998) [1999] 2 Cr App R (S) 185 111 Attorney-General's Reference (no. 71 of 1999) [1999] 2 Cr App R (S) 369 1ll Attorney-General's Reference (no.32 of 1996 (Whittaker)) [1997] 1 Cr App R (S) 261 108 Findlay v Secretary of State for the Home Department [1984] 3 All ER 801 118, 120 H v Mental Health Tribunal, North and East London Region [2001] EWCACIV415 114, 128 Payne v Lord Harris of Greenwich and Others [1981] 1 WLR 754 96, 113, 116, 121 Practice Note [2000] 4 All ER 831 127 R vAramah (1982) 4 Cr App R (S) 407 107 R v Buckland [2000] Criminal Law Review 308 1ll R vBilinski (1987)9CrAppR(S)360 107 R v Chapman [2000] 1 Cr App R (S) 377 108 R v Cunningham (1993) 14 Cr App R (S) 444 103 R v Cunningham [1955] Criminal Law Review 193 93 R v DD (2001) LTC 7/8/2001 127 R v Grantham [1955] Criminal Law Review 386 93 R v Gunnel (1966) 50 Cr App R 242 94 R v Hodgson (1968) 52 Cr App R 113 94, 108 R v Holmes [1955] Criminal Law Review 578 93 R v Kelly [2000] 1 QB 198 (CA) 110, 129 R v Lichnaik and Pyrah The Times 16 May 2001 130 R v Offen; R v McGilliard; R v McKeown; R v Okwuegbunam, RvS [2001] 1WLR 253 128-129, 201 R v Offen [200] Criminal Law Review 306 128 R v Parole Board and Home Secretary, Exparte Gunnel [1985] Criminal Law Review 105 113 R.v Parole Board, Ex parte Bradley [ 1991] 1 WLR 134 113 R v Parole Board, ex parte Wilson [1992] 1 QB 740 (CA) 116 R v Robinson [1997] 2 Cr App R (S) 35 107 R v Secretary of State for the Home Department, Exparte Doody [1994] 1 AC 531 (HL) 3, 120-123, 131 R v Secretary of State for the Home Department, ex parte Handscombe and Others (1988)86CrAppR59 112 R v Secretary of State for the Home Department, exparte Hindley [2000] 2 All ER 385 (HL).. 84, 124, 211, 214 R v Secretary of State for the Home Department, Exparte Pierson [1998] AC 539 (HL) 123-124 R v Secretary of State for the Home Department, Exparte Venables and Thompson [1998] AC 407 (HL) 124, 126-127 R v Singh (1988) 10 Cr App R (S) 402 107 R v Wilkinson (1983) 5 Cr App R (S) 105 108 Re Thompson and another (tariff recommendations) [2001] 1 All ER 737 (CA) 127 Secretary of State for the Home Department exparte Anderson and Taylor [2001] ECWHC ADMIN 181.... 131 Germany BVerfGE 1,348 BVerfGE33, 1 BVerfGE 35, 202 (the Lebach case) BVerfGE 45, 187 234

9 144 14, 144-145 145, 147-150

Table of Cases BVerfGE64, 261 BVerfGE72, 105 BVerfGE 86, 288 BVerfGE91, 1 BGHS130, 105

152-153 153 154, 210 163 151-152

Decisions of Other Countries Constitutional Court of Hungary (23/9/1990 (X31)) Corte cost. Sentenza, 27 September 1983, nr 274, Foro Italia 1, 2333, (Italy) Decision nr. 93-334 DC of January 20, 1994, (France) SvDodo200l (1) SACK 594 (CC), (South Africa) S v Makwanyane 1995 (3) SA 391 (CC)), South Africa S v Nehemia Tjijo (Namibia, 1991, unreported) S v Tcoeib 1996 (1) SACK 390 (NmS), Namibia S vTcoeib 1993(1) SACK 274 (Nm), Namibia

217 13, 213 213 9, 198 217 216 216 216

Decisions of the European Court of Human Rights, Strasbourg Hussein v United Kingdom (1996) 22 EHRR 1 Thynne, Wilson and Gunnell v United Kingdom (1991) 13 EHRR 666 V v United Kingdom (2000) 30 EHRR 121 Weeks v United Kingdom (1988) 10 EHRR 293 Wynne v United Kingdom (1995) 19 EHRR 333 Xv United Kingdom (1982) 4 EHRR 252

125 115-116 126-127, 130 114-115 122-123 114

Decisions of the International Criminal Tribunal for Rwanda Prosecutor v Akayesu ICTR-96-4-T, Trial Chamber 2 October 1998, Appeals Chamber 1 June 2001 .... Prosecutor v Kambanda ICTR-97-23-T, Trial Chamber 4 September 1998, Appeals Chamber 19 October 2000 Prosecutor v Kayishema ICTR-95-1-T, Trial Chamber 21 May 1999, Appeals Chamber 1 June 2001 ... Prosecutor vMusemalCTR-96-l3-T, Trial Chamber 27 January 2000 Prosecutor v Rutaganda ICTR-96-3-T, Trial Chamber 6 December 1999

185-186 185-186 185-186 185-186 185

Decisions of the International Criminal Tribunal for the former Yugoslavia Prosecutor v Blasic Case No. IT-95-14, Trial Chamber 3 March 2000 187 Prosecutor v Erdemovic Case No. IT-96-22, Trial Chamber 29 November 1996 180-181 Prosecutor v Jelisic Case No. IT-95-10, Trial Chamber 14 December 1999, Appeals Chamber 5 July 2001.. 187 Prosecutor v Krstic Case No. IT-98-33, Trial Chamber 2 August 2001 187 Prosecutor v Tadic Case No. IT-94-1, Trial Chamber 14 July 1997 181

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INDEX

abolition, of the death penalty, 6, 18, 31, 43, 46, 49-50, 84-85, 87- 88, 91, 93, 95, 103-104, 140, 170, 181 of life imprisonment, 6, 17, 99, 102, 106, 125, 143, 155-161, 164, 173-174, 181, 183,217 Advisory Council on the Penal System, 93, 99100, 105, 230 African Charter on Human and People's Rights, 9, 170,232 American Convention on Human Rights, 9,11, 13, 15, 170-171, 173,232 Arangio-Ruiz, Int. Law Commissioner, 175 Ashworth, A, 10, 79, 98, 107-109, 218, 228 Baden-Wiirttemberg, 150, 163-164 Basic Principles for the Treatment of Prisoners, 179,231 Bassiouni, M C, 8, 168, 170, 179, 180, 182, 218 Beaumont, G,33, 219 Beccaria, C, 5-7, 29-31, 84, 219, 223, 226, 229 Bedau, H A, 6, 31, 40, 46, 56, 219, 220 Bentham, J, 84, 219 Bingham, Lord, 104, 108-111, 219 Blackmun, Justice, 66, 210 Blair, D, 55-56, 58, 219 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, 179, 231 Bottoms, A, 97, 204, 205, 206, 219, 228 Brazil, 174, 189 Breyer, Justice, 69, 74 Brittan, L, 117, 120-122 Brockway, Z, 36-37, 219 Browns word, R, 204-206, 219 Bulger, J, 104 Butler Committee on Mentally Abnormal Offenders, 99, 230 California (US State), 22, 39-41, 45, 47-48, 50, 59-63,64,69-71,73,75,200 capital punishment See death penalty clemency, 39, 46, 56, 67, 68, 69, 207

See also commutation, pardon Clinton, President, 60 Code of Crimes against the Peace and Security of Mankind, 169, 171, 172, 188 Cohen, S, 49, 96-97, 219 Committee on the Penalty for Homicide, 104, 219 commutation, 3, 46, 54, 56, 58, 66, 90, 183-185, 194 See also clemency, pardon Convention for the Prevention and Punishment of Genocide, 169, 231 Convention on the Rights of the Child, 12, 190, 192,231 Coornert, D, 4 corporal punishment, 8 Crawford, W, 31-32, 220 Criminal Law Revision Committee, 98-100 Cuomo, Governor, 55 dangerousness, 2, 18, 20-21, 34, 41-45, 47, 50, 56, 60, 66, 70, 73-76, 83, 93-94, 96, 98, 100102, 106-109, 112, 129-133, 140, 142, 158, 161, 163-164, 194, 200-206, 208-211, 214 De Tocqueville, A, 33, 219 death penalty, 1,4-6,8, 11, 15-9,21,31,37,3940, 43, 45- 46, 48, 54-58, 62-64, 66-67, 7173, 76, 84-85, 87-92, 95, 97, 125, 135, 139140, 156, 168, 170-175, 179, 180-182, 185, 188-189, 191-193, 200, 207- 208, 210, 212, 214-215,217 detention during Her Majesty's pleasure, 78-79, 104, 126 Discretionary Lifer Panel, 116 dual-track, See second track due process, 9, 11, 14-15, 50, 62, 69, 74, 76, 116117, 122, 125, 169, 184, 192, 201-202, 208210,212,215-216 Dukakis, Governor, 57 Dutroux case, 162 Dwight, T, 32-33, 35, 85-86, 229 Dworkin, R, 204-205, 220

237

Index Eighth Amendment of the United States Constitution, 7, 8, 11, 30, 47, 62-63, 65-68, 70-72 Eisenhower, President, 54 Elias, N, 16, 220 Elmira, 37 England (and Wales), 7, 17-18, 25, 78-134, 139, 197-198, 200-202, 206, 208-212, 214, 216217 European Convention on Human Rights, 9, 15, 18, 111, 113-114, 128, 131-132, 170, 201, 230 European Enlightenment, 4-5, 30, 170, European Prison Rules, 12, 179, 232 Feeley, M, 50-52, 221 Fife, R, 189-190, 193-194, 221 Floud committee on dangerous offenders 106107, 220 Foucault, M, 5, 16, 221 France, 6-7, 31,33, 186,213 Friedman, L, 30, 37, 38, 40, 221 Garland, D, 16-17, 49, 86, 221 Germany, 4, 7, 17-18, 135-166, 168, 197-198, 200,208,214,216-217 Cowers, E, 90, 97, 221 Graefrath, Int. Law Commissioner, 174 Grasberger, U, 59, 141, 155, 166, 221 Grundgesetz,9, 140, 144-149, 152-153, 156-158, 166 habitual offenders, 38, 45-46, 56, 59, 85-86, 140, 160,200 Hawkins, G, 59, 61, 63,-64, 203, 229 Hill, M, 30, 35, 85 homicide, 21, 25, 54, 91, 93, 97-98, 105, 108, 135, 137, 141, 146, 151, 158, 161, 206 Hood, R, 85, 86, 109, 222, 225 Horton,W, 57 Howard, M, 108, 110, 121-122 Howard League for Penal Reform, 106 human dignity, 9, 11-12, 14, 48, 63-64, 85, 144, 146-149,157-158, 161, 166, 169, 184, 196, 198,204,212-216 Illueca, Int. Law Commissioner, 174-175 imprisonment effects of life imprisonment, 96-97, 148, 212213

238

indefinite detention, 1, 3, 42, 76, 93-94, 164, 206207 India, 9 International Covenant on Civil and Political Rights, 9-11, 13-15, 169-170, 178, 181, 192, 231 International Criminal Court, 167, 188-196 international criminal law, 18, 167-169, 177-179, 183, 189-190, 192,213,217 International Criminal Tribunal for Rwanda, 167, 178, 185, 191, 193,231 International Criminal Tribunal for the former Yugoslavia, 167, 178-180, 184, 187, 195, 231 Rules of Detention, 179 Rules of Evidence and Procedure, 184 international human rights law, 9, 12, 19, 166170, 173,179,182-183, 196 International Law Commission, 169-172, 174177, 188,195 International Military Tribunal for Germany, 168169, 194 International Military Tribunal for the Far East, 168 Italy, 4, 13, 175,213 Jefferson, President, 29, 30 juveniles, 72-73, 78, 96, 125-128, 132, 134, 138, 140 Kamin, S, 52, 59, 61, 221, 229 Kampala Declaration on Prison Conditions in Africa, 12 Kansas (US State), 74-76, 202 Kennedy, Justice, 53, 68-70, 75, 207, 216 Komiteefur Grundrechte und Demokratie, 5, 156, 159-161,220,222,223,224 Lane, Lord, 5, 104, 108 legality, 14-15, 97, 113, 133, 163, 168-170, 172, 178, 180-181, 183-184, 191, 193-194, 196, 208, 216 life without parole, 3, 20-22-25, 46, 51-59, 63, 6673,84, 186, 197,207 life sentences, automatic, 108-112, 130-131,203 discretionary, 65, 78-79, 83, 88, 94, 96, 100101, 105-109, 111-116, 120, 122, 126,133134, 141, 201-203, 206, 208, 210 mandatory, 18, 52-53, 60, 64-66, 71-72, 91, 95,98-104, 110, 113, 118, 120, 122-123,

Index 125, 130-134, 155, 158, 200-202, 207-210, 216 Logan, W, 69, 72-73, 223 Mahiou, Int. Law Commissioner, 176 Mahrenholz, Judge, 153-155, 210 Manual of Correctional Standards, 42, 218 Marshall, Justice, 63 Massachusetts, (US State), 22, 30, 32-33, 38, 41, 57 McKelvey, B, 32, 38, 40, 223 mental illness, 2, 73-76, 79, 91, 94, 189, 202-203 mercy, 6, 88, 106, 108, 114, 120-123, 174, 213 See also clemency, commutation, pardon Michigan (US State), 22, 48, 53, 66-73, 199, 207, 216 Mill, J S, 85 Minnesota (US State), 22, 50 Model Penal Code, 42-44, 46,48, 218 Model Sentencing Act, 42-45, 48, 218 Morris, N, 4, 30, 41-42, 86, 224, 225 Mustill, Lord, 2, 120-121 Namibia, 213, 216 National Congress on Penitentiary and Reformatory Discipline, 35, 228 National Corrections Reporting Program, 21, 25, 52, 233 National Council for Civil Liberties, 101 Nazi, 140, 141, 163 Nevada (US State), 22, 73 New York (US State), 22, 29, 32, 37-38, 41, 5253,55, 189 Njenga, Int. Law Commissioner, 174 Norway, 189 Nowak, M, 10, 14, 192, 224 nulla poena sine lege, 15, 168, 172, 181 Nuremberg Tribunal. See International Military Tribunal for Germany offences crimes against humanity, 167, 168, 175, 177, 180,187, 190 drug offences, 18, 21, 25,27-28 51-54 66-68, 70-71,81, 107, 145, 175, 199,207 genocide, 135, 141, 167, 169, 175, 186, 190, 196,210 kidnapping, 21-22, 26, 81, 105, 136 manslaughter, 25-26, 80, 88, 91-93, 99-100, 106, 110, 135-137, 141, 146, 148, 151-152, 164 See also homicide

murder, 2, 18, 21-22, 26, 31, 33, 39, 41, 43-46, 49, 55-56, 58-59, 63,-64, 68, 71-72, 78-81, 83-84, 87-92, 94, 96-106, 110, 113, 117-118, 120, 122-125, 130-137, 140-141, 145-149, 151-152,154-155, 158,161-162, 164-165, 198, 200-202, 205, 207-211, 215-216 rape, 21, 31, 43, 64, 80, 105, 110, 162, 164 robbery, 21,43, 80, 105, 110-111, 114, 117, 136 sexual offences, 21-22, 26, 41-42, 74-76, 78, 80,94, 102, 105, 107, 109-110, 117, 164, 206 See also sexually violent predators Ogiso, Int. Law Commissioner, 176 Ohio (US State), 22, 33, 38 ordre public, 192 pardon, 3, 32-33, 36-39, 46, 49-50, 57, 84, 138, 140, 142,144,147,149,151,155,183-185, 194 See also clemency, commutation, mercy Parker, Lord, 92 parole, 18, 20-21, 24, 33, 37, 39-41, 43, 45-46, 49-52, 54-59, 65-68, 70-73, 83, 95, 99, 102, 110-111, 113, 116-119, 122, 165, 174, 176, 183, 198,200,207,211,214,216 parole boards, 39,41, 43, 83, 95-96, 99, 102, 109-110, 112-113, 115-119, 121, 125, 127, 130, 202 parole system, 39, 40-41, 46, 65, 118, 216 See also life without parole Pataki, Governor, 53 Paterson, A, 90 penal scale, 31, 199 Portugal, 189 Powell, Justice, 65 Powers, E, 45- 46, 225 preventive detention, 2, 21, 74, 86, 96, 116, 133, 138-139, 140, 142, 162-164, 206-208, 210, 214,217 Projektgruppe Fulda, 156, 228 punishment cruel and unusual, 7, 8, 10-11, 30, 47, 57, 6266, 68, 70, 198 See also Eighth Amendment of the United States Constitution cruel, inhuman and degrading, 157, 169,198 inhuman and degrading, 7, 9-11, 13, 125, 127128, 130, 185,201,204,216 punitiveness, 51, 60, 76, 161, 215 Radzinowicz, L, 84-86, 88, 91, 225 Razafindralambo, Int. Law Commissioner, 176 239

Index Rechtsstaat, 144, 147, 149, 153 Rehnquist, Justice, 64, 65, 67, 198 Reindl, R, 159,163,221,228 release, 45, 52, 56, 92, 95, 102, 130, 142, 152, 183,211-212,215 Reynolds, B, 59, 62 Rockefeller, Governor, 52-53 Rothman, D, 4, 29, 32-33, 40-41, 141, 220, 225 Royal Commission on Capital Punishment, 87-91, 233 Rumbold, A, 119-120, 122 Sapsford, R, 97, 225 Scalia, Justice, 67-68 Scarman, Lord, 118, 120 Schabas, W, 7, 9, 168-170, 172, 179, 180-182, 189, 191,226 Schulhofer, S, 42, 74-75, 226 second track, 2, 86, 139-140, 161, 206-207 Select Committee of the House of Lords on Murder and Life Imprisonment, 100, 116, 119,230 Sellin, T, 6-7, 226 sentencing principles desert, 51,73, 74 deterrence, 5, 30-32, 41, 49, 51, 53, 55, 63, 67, 75, 101-103, 112, 118-120, 122, 146, 159, 174,202 incapacitation, 2, 49, 51, 56-58, 63, 70, 73, 75, 85, 158, 174-175, 203-204 proportionality, 5, 9-10, 30-31, 35, 38, 40-41, 48, 53, 62, 64, 65-71, 73, 99, 103, 109-110, 121,130-132, 147, 149, 151, 154, 159, 163, 198-201, 203-204, 206-211, 215 rehabilitation, 12-14, 32, 37, 40, 43, 46, 47, 49, 51-52, 56, 67, 114, 158, 173-174, 184, 195, 213,215 resocialization, 142, 144, 146, 148-149, 153, 158, 165-166 retribution, 46, 55, 67, 75-76, 101-112, 118120,122,160-161, 174, 202, 215 sexually violent predators, 74-75, 202-203 Sheleff, L, 1,6,85,219,226 Simon, J, 50-51, 60, 76, 221, 226 Sozialstaat, 142, 144, 147, 149, 158

240

Spain, 13, 189,213-214 Spierenburg, P, 16, 226 Standard Minimum Rules for the Treatment of Prisoners, 12, 179,231 Standards relating to Sentencing Alternatives and Procedures, 42 Statute of Rome, 16, 167, 188-192, 194-196, 200, 231 Stevens, Justice, 57, 66-67, 69, Steyn, Lord, 124 Straw, J, 104, 124 Sutherland, E, 42, 227 Switzerland, 4, 140 Taylor, L, 96-97, 219 Thaim, D, 171 Thomas, D, 98, 129, 227 'three strikes and you are out' 16, 51, 59-61, 7071,203, torture, 8-11, 113 Tudela, Int. Law Commissioner, 171 United States of America, 7-8, 10-12, 15, 17-18, 20-77, 84-87, 96, 139, 141, 155-156, 182, 197-198, 201-202, 206, 208, 210, 212, 214 Universal Declaration of Human Rights, 9, 169, 170,234 Vereinigungstheorie, 148, 158, 160 Von Liszt, F, 140, 160, 228 Walker, N, 89, 90, 91, 97, 109, 204, 228 Walker, S, 32, 38, 40, 228 Warren, Justice, 16 Washington, (US State) 59, 72 Weber, H, 138, 151, 156-163, 165, 221, 226, 228 White, Justice, 66 Windlesham, Lord, 51, 54, 60, 92, 102, 104, 119, 132,228 Wines, E, 32-33, 35, 36, 39, 85, 86, 219, 225, 228, 229 Woolf, Lord,112, 200, 229 Zimring, F, 42, 51, 59, 61, 63-64, 203, 224, 229