Life Imprisonment and Human Rights 9781509902200, 9781509902224, 9781509902231

Citation preview

LIFE IMPRISONMENT AND HUMAN RIGHTS In many jurisdictions today, life imprisonment is the most severe penalty that can be imposed. Despite this, it is a relatively under-researched form of punishment and no meaningful attempt has been made to understand its full human rights implications. This important collection fills that gap by addressing these two key questions: what is life imprisonment and what human rights are relevant to it? These questions are explored from the perspective of a range of jurisdictions, in essays that draw on both empirical and doctrinal research. Under the editorship of two leading scholars in the field, this innovative and important work will be a landmark publication in field of penal studies and human rights.

Oñati International Series in Law and Society A SERIES PUBLISHED FOR THE OÑATI INSTITUTE FOR THE SOCIOLOGY OF LAW General Editors Rosemary Hunter David Nelken Founding Editors William L F Felstiner Eve Darian-Smith Board of General Editors Carlos Lugo, Hostos Law School, Puerto Rico Jacek Kurczewski, Warsaw University, Poland Marie-Claire Foblets, Leuven University, Belgium Recent titles in this series Shooting to Kill: Socio-Legal Perspectives on the Use of Lethal Force Edited by Simon Bronitt, Miriam Gani and Saskia Hufnagel Managing Family Justice in Diverse Societies Edited by Mavis Maclean and John Eekelaar Making Human Rights Intelligible Towards a Sociology of Human Rights Edited by Mikael Rask Madsen and Gert Verschraegen European Penology? Edited by Tom Daems, Dirk van Zyl Smit and Sonja Snacken Rights and Courts in Pursuit of Social Change Legal Mobilisation in the Multi-Level European System Edited by Dia Anagnostou Women’s Rights to Social Security and Social Protection Edited by Beth Goldblatt and Lucie Lamarch Delivering Family Justice in the 21st Century Edited by Mavis Maclean, John Eekelaar and Benoit Bastard Regulatory Transformations Rethinking Economy-Society Interactions Edited by Bettina Lange, Fiona Haines and Dania Thomas For the complete list of titles in this series, see ‘Oñati International Series in Law and Society’ link at www.hartpub.co.uk/books/series.asp

Life Imprisonment and Human Rights

Edited by

Dirk van Zyl Smit and Catherine Appleton

Oñati International Series in Law and Society A SERIES PUBLISHED FOR THE OÑATI INSTITUTE FOR THE SOCIOLOGY OF LAW

OXFORD AND PORTLAND, OREGON 2016

Hart Publishing An imprint of Bloomsbury Publishing Plc Hart Publishing Ltd Kemp House Chawley Park Cumnor Hill Oxford OX2 9PH UK

Bloomsbury Publishing Plc 50 Bedford Square London WC1B 3DP UK

www.hartpub.co.uk www.bloomsbury.com Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA www.isbs.com HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published 2016 © The Editors The Editors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http:// www.nationalarchives.gov.uk/doc/open-government-licence/version/3) excepted where otherwise stated. All Eur-lex materials used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2015. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: HB: 978-1-50990-220-0 ePDF: 978-1-50990-222-4 ePub: 978-1-50990-223-1 Library of Congress Cataloging-in-Publication Data Names: Van Zyl Smit, Dirk, editor.  |  Appleton, Catherine, editor. Title: Life imprisonment and human rights / edited by Dirk van Zyl Smit and Catherine Appleton. Description: Oxford ; Portland, Oregon : Hart Publishing, an imprint of Bloomsbury Publishing Plc, 2016.  |  Series: Oñati international series in law and society  |  Includes bibliographical references and index. Identifiers: LCCN 2016041046 (print)  |  LCCN 2016041335 (ebook)  |  ISBN 9781509902200 (hardback : alk. paper)  |  ISBN 9781509902231 (Epub) Subjects: LCSH: Life imprisonment. Classification: LCC K5105.5 .L54 2016 (print)  |  LCC K5105.5 (ebook)  |  DDC 345/.0773—dc23 LC record available at https://lccn.loc.gov/2016041046 Series: Oñati International Series in Law and Society Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

Acknowledgements The idea for this book emerged during a planning meeting in February 2014, in the very first week of our research project on Life Imprisonment Worldwide. This project, which has been funded by the Leverhulme Trust (RPG-2013-369), has allowed us for the past two years to focus our attention on a wide range of issues relating to life imprisonment. We thank the Trust for this privilege. The Oñati International Institute for the Sociology of Law (IISL) accepted our bid for a workshop that would enable us to bring together a ‘dream team’ of scholars from around the world to reflect on life imprisonment and human rights, and present first versions of the chapters that make up the bulk of this book. In Oñati, the IISL provided us with logistical and administrative support and made our stay in the Basque country a very pleasant experience. We would like to mention in particular its coordinator, Malen Gordoa Mendizabal for making the arrangements on behalf of the IISL, and Georgie Benford, then a researcher on the Life Imprisonment Worldwide project, for co-ordination from our side. Our thanks go to the team at Hart/Bloomsbury Publishing for copyediting and producing this book. Thank you to our contributing authors who patiently and promptly answered our many queries. In the process they taught us great deal about the intricacies of life imprisonment around the world, which we would not have learnt about otherwise. Finally, we are particularly thankful to Ricky Röntsch who assisted greatly with the technical editing of what was inevitably a very complex manuscript. Dirk van Zyl Smit and Catherine Appleton Nottingham, 29 June 2016

vi

Contents Acknowledgements����������������������������������������������������������������������������������� v List of Contributors��������������������������������������������������������������������������������� xi List of Figures, Tables and Annexes������������������������������������������������������� xiii Introduction���������������������������������������������������������������������������������������������� 1 Dirk Van Zyl Smit, Catherine Appleton and Georgie Benford Part I: The Challenge of ‘Life’ in the Americas 1. The Impact of Life Imprisonment on Criminal Justice Reform in the United States��������������������������������������������������� 23 Marc Mauer and Ashley Nellis 2. Life Imprisonment in Latin America������������������������������������������������� 43 Beatriz López Lorca Part II: Life without Parole around the World 3. Life without Parole in Australia: Current Practices, Juvenile and Retrospective Sentencing���������������������������������������������� 75 Kate Fitz-Gibbon 4. Life Imprisonment and Human Rights in Uganda����������������������������� 97 Jamil Ddamulira Mujuzi 5. A New Form of Life Imprisonment for India?�������������������������������� 119 Madhurima Dhanuka 6. An Administrative Procedure for Life Prisoners: Law and Practice of Royal Pardon in the Netherlands�������������������� 141 Wiene van Hattum and Sonja Meijer 7. Constitutionalising Life Imprisonment without Parole: The Case of Hungary���������������������������������������������������������������������� 167 Miklós Lévay 8. A Right to Hope? Life Imprisonment in France������������������������������ 189 Marion Vannier

viii  Contents Part III: Life Imprisonment and the European Convention of Human Rights 9. The Paradox of Reform: Life Imprisonment in England and Wales����������������������������������������������������������������������� 217 Catherine Appleton and Dirk Van Zyl Smit 10. Life Imprisonment in Belgium: Current Human Rights Challenges������������������������������������������������������������������������� 241 Sonja Snacken, Ineke Casier, Caroline Devynck and Diete Humblet 11. Confusingly Compliant with the European Convention on Human Rights: The Release of Life Sentence Prisoners in Ireland�������������������������������������������������������������������������������������� 267 Diarmuid Griffin and Ian O’Donnell Part IV: Countries without Life Imprisonment 12. Punishment in Portuguese Criminal Law: A Penal System without Life Imprisonment���������������������������������� 289 Inês Horta Pinto 13. The Abolition of Life Imprisonment in Brazil and its Contradictions������������������������������������������������������������������������������ 307 Giovanna Maria Frisso 14. Long-term Imprisonment in Latin America����������������������������������� 329 Francisco Javier de León Villalba Part V: The (Re)introduction of Life Imprisonment 15. Life and Long-Term Imprisonment in the Countries of the Former Yugoslavia��������������������������������������������� 351 Filip Vojta 16. The Right to Hope for Lifers: An Analysis of Court Judgments and Practice in Poland������������������������������������������������� 373 Maria Ejchart-Dubois, Maria Niełaczna and Aneta Wilkowska-Płóciennik 17. Long-Term and Life Imprisonment in Spain: Release Procedures and Terrorism������������������������������������������������ 389 Jon-Mirena Landa Gorostiza Part VI: Life Imprisonment and Preventive Detention 18. Constitutional Limits on Life Imprisonment and Post-Sentence Preventive Detention in Germany��������������������������� 411 Axel Dessecker

Contents ix 19. Life without Parole for Preventive Reasons? Lifelong Post-sentence Detention in Switzerland��������������������������� 435 Anna Coninx 20. Life Imprisonment and Related Institutions in the Nordic Countries�������������������������������������������������������������������������� 461 Tapio Lappi-Seppälä Index����������������������������������������������������������������������������������������������������� 507

x

List of Contributors Catherine Appleton is Senior Research Fellow at the University of Nottingham. Georgie Benford is Lecturer in Criminology at the University of the West of England. Ineke Casier is a doctoral student at the Vrije Universiteit Brussel. Anna Coninx is Senior Research Fellow and Lecturer in Criminal Law and Criminal Procedure Law at the University of Zurich. Axel Dessecker is Deputy Director of the Kriminologische Zentralstelle Wiesbaden and Professor of Criminology at the University of Göttingen. Caroline Devynck is a doctoral student at the Vrije Universiteit Brussel. Madhurima Dhanuka is a consultant with the Prison Reforms Programme at the Commonwealth Human Rights Initiative in India. Maria Ejchart-Dubois is a researcher at the University of Warsaw. Kate Fitz-Gibbon is Senior Lecturer in Criminology at Monash University. Giovanna Frisso is Lecturer in Law at the Universidade Federal Fluminense. Diarmuid Griffin is Lecturer in Law at the National University of Ireland, Galway. Wiene van Hattum is Assistant Professor of Criminal Law at the University of Groningen and and President of Forum Levenslang. Inês Horta Pinto is Head of the Office of the President of the Constitutional Court of Portugal. Diete Humblet is a doctoral student at the Vrije Universiteit Brussel. Jon-Mirena Landa Gorostiza is Professor of Criminal Law at the University of the Basque Country (UPV/EHU). Tapio Lappi-Seppälä is Director of the Institute of Criminology and Legal Policy at the University of Helsinki. Francisco Javier de León Villalba is Professor of Criminal Law at the University of Castilla La Mancha.

xii  List of Contributors Miklós Lévay is Judge of the Constitutional Court of Hungary and Professor of Criminology at Eötvös Loránd University. Beatriz López Lorca is Lecturer in Criminal Law at the University of Castilla La Mancha. Marc Mauer is Executive Director of The Sentencing Project in Washington, DC. Sonja Meijer is Assistant Professor of Criminal Law at the Vrije Universiteit Amsterdam. Jamil Ddamulira Mujuzi is Associate Professor of Law at the University of the Western Cape. Ashley Nellis is Senior Research Analyst at The Sentencing Project in Washington, DC. Maria Niełaczna is Assistant Professor at the Institute of Social Prevention and Rehabilitation at the University of Warsaw. Ian O’Donnell is Professor of Criminology at University College Dublin. Sonja Snacken is Professor of Criminology, Penology and Sociology of Law at the Vrije Universiteit Brussel. Marion Vannier is a doctoral student at the University of Oxford. Filip Vojta is a doctoral student at the Max Planck Institute for Foreign and International Criminal Law. Aneta Wilkowska-Płóciennik is a researcher at the University of Warsaw. Dirk van Zyl Smit is Professor of Comparative and International Penal Law at the University of Nottingham.

List of Figures, Tables and Annexes Figures Figure 1.1 The Expansion of Life Sentences in the United States, 1984–2012���������������������������������������������������������������������������������������������� 25 Figure 6.1 Number of Life Prisoners in Penal Institutions in the Netherlands since 1957 and Number of Pardons since 1949����������������� 151 Figure 8.1 Number of Prisoners Serving Life Sentences������������������������� 205 Figure 8.2 Number of Life Sentences Handed Down per Year��������������� 206 Figure 10.1: Evolution of Different Categories 1997–2013 (index based)����������������������������������������������������������������������������������������� 249 Figure 15.1 Number of Death Sentences Imposed in the SFRY, 1949–1974�������������������������������������������������������������������������������������������� 353 Figure 20.1 Number of Executions 1759–1910 and Annual Number of Persons Sentenced to Life Imprisonment in Sweden 1858–2010������������������������������������������������������������������������������� 464 Figure 20.2 Imposed Peacetime Death Sentences 1842–1949 and Life Imprisonment 1891–2014 in Finland (Field-Courts and State-Crime Courts Excluded)�������������������������������������������������������� 465 Figure 20.3 Number of Life Sentences Imposed by Courts in Denmark, Finland and Sweden 1980–2013������������������������������������������� 479 Figure 20.4 Prisoners Serving a Life Sentence in Finland (January 1st), Sweden (October 1st) and Denmark (Annual Average). Absolute Numbers��������������������������������������������������� 481 Figure 20.5 Psychiatric Care Orders for the Mentally Ill (Non-Responsible) and Those with Diminished Responsibility in Denmark������������������������������������������������������������������������������������������� 493 Figure 20.6 Legislation on Sanction Structures and Mental Health Services for Social Protection and Risk Management of Serious Violent Offences in the Nordic Countries���������������������������������������������� 498

xiv  List of Figures, Tables and Annexes Tables Table 2.1 Offences Providing for a Life Sentence������������������������������������� 45 Table 2.2 The Scope of Life Imprisonment���������������������������������������������� 48 Table 2.3 Models of Life Imprisonment: Mandatory or Discretionary Life Imprisonment������������������������������������������������������������� 51 Table 2.4 Models of Life Imprisonment: Prospect of Release������������������ 52 Table 3.1 Percentage of Prisoners with a Most Serious Offence of Homicide Serving an Indeterminate Sentence per State or Territory Jurisdiction as at 30 June 2013��������������������������������������������������������������� 78 Table 3.2 Characteristics for Life Sentenced Murder Offenders in NSW, November 1990–October 2013������������������������������������������������� 79 Table 6.1 Number of Irrevocable Life Sentences 1870–2015 and Number of Pardons since 1889������������������������������������������������������ 152 Table 7.1 Parole Eligibility and Minimum Duration of Parole in Hungary, 1972–2013������������������������������������������������������������������������ 173 Table 7.2 Sentencing Practice in Relation to Life Imprisonment in Hungary, 2011–2014���������������������������������������������������������������������������� 185 Table 8.1 Life Sentences—Type of Crimes��������������������������������������������� 206 Table 8.2 Length of Time Served when Sentenced to Life Imprisonment��������������������������������������������������������������������������������������� 208 Table 8.3 Age of Inmates Sentenced to Life Imprisonment as of 1 July 2014����������������������������������������������������������������������������������� 208 Table 10.1 Overview of the Different Categories (1997–2013)������������� 247 Table 10.2 Overview of Mentally Ill Offenders and ‘Others’ (1997–2013)���������������������������������������������������������������������������� 251 Table 14.1 Maximum Terms of Imprisonment�������������������������������������� 331 Table 14.2 Overcrowding in Latin American Prisons (2010–2012)������� 337 Table 14.3 Violence in Prisons (2010)��������������������������������������������������� 339 Table 14.4 Minimum Term to Be Served before Being Considered for Conditional Release������������������������������������������������������ 342 Table 15.1 Life and Long-Term Imprisonment in the Former SFRY Countries������������������������������������������������������������������������ 361

List of Figures, Tables and Annexes xv Table 20.1 Peak Years of Preventive Detention in the Nordic Countries���������������������������������������������������������������������������������������������469 Table 20.2 Preventive Detention in Norway: 2002–2013���������������������� 485 Table 20.3 Preventive Detention in Denmark: 2002–2013�������������������� 487 Annex List of the Total Number of Prisoners Serving an Irrevocable Life Sentence in the Netherlands and Convicted since 1980������������������ 163

xvi

Introduction DIRK VAN ZYL SMIT, CATHERINE APPLETON AND GEORGIE BENFORD

I. BACKGROUND

L

IFE IMPRISONMENT is the most severe penalty that can be imposed in many countries in the world. In other countries, which retain the death penalty as their ultimate sanction, it is also a penalty served by persons convicted of very serious offences. However, life imprisonment is a relatively under-researched form of punishment. In particular, no attempt has been made to understand the human rights implications of different forms of life imprisonment as they emerge in various jurisdictions around the world. It was to fill this gap for the first time that we brought together a group of scholars from every continent at a workshop held at the International Institute for the Sociology of Law in Oñati on 16 and 17 April 2015. Participants in the workshop were invited to reflect on the human rights implications of the sentence of life imprisonment within the jurisdictions or regions on which they had particular expertise. This somewhat open-ended approach proved to be invaluable. It soon became clear that ‘life imprisonment’ presented itself in different forms in the various jurisdictions represented and that the participants chose to focus on various incarnations of life imprisonment as problematic from the point of view of human rights. At an abstract level there was less variation in the ‘human rights’ that were considered relevant to life imprisonment in the different contributions. However, in substantive legal terms there were important differences across jurisdictions in how human rights-based norms impacted on the practice of imposing and implementing life sentences. The papers that were presented in Oñati have been extensively revised and form the substantive chapters of this book. We have organised them under six thematic headings, which reflect the primary focus of the individual chapters, while recognising that many of them address several issues that cannot be pigeonholed so easily. In this Introduction we highlight how each of these six themes has been developed by our contributors. Before doing so, however, we develop in general terms the concepts of ‘life imprisonment’ and ‘human rights’.

2  Dirk Van Zyl Smit, Catherine Appleton and Georgie Benford II.  WHAT IS LIFE IMPRISONMENT?

What all sentences of life imprisonment have in common is that they give the state the power to keep incarcerated for the rest of their lives those persons on whom the sentence has been imposed. Other than this commonality there is a great deal of variation. Much of the variation relates to the possibilities of release from life imprisonment, for some life sentences not only give the state the power to incarcerate, they also restrict, or ostensibly remove, the power of the state ever to release someone subject to a life sentence. Some jurisdictions, most prominently though not exclusively in the USA, provide explicitly for life sentences without the prospect of parole (LWOP) which stand in contrast to ‘ordinary’ life sentences from which life prisoners can be released conditionally, although this possibility of release may in practice be very restricted too. Even LWOP generally leaves open the possibility of some form of executive pardon outwith the parole system, but this tends to be highly restricted in law, bereft of procedural safeguards and in most jurisdictions rarely used in practice. At the extreme, the executive power to release may be so weak that it is possible to talk of a ‘whole life’ sentence, from which release is not realistically possible in law or in fact. Even those jurisdictions that allow for the possibility of release from life imprisonment in law do not necessarily facilitate the process of release in practice. Lengthy minimum terms, poor prison conditions, lack of reintegrative opportunities and a concern regarding future recidivism often mean life prisoners are ill-equipped for release and have little chance of gaining parole. Not all sentences that give states the power to imprison individuals for the rest of their lives are called sentences of ‘life imprisonment’. There are at least two further types of sentence that share this characteristic and can quite properly be identified as life sentences. The first type consists of those fixed-term sentences that are so long, and from which prospects of release are so restricted, that it is not realistic to expect that the prisoner will be considered for release before they die. Extreme cases are easy to identify: for example, a fixed-term sentence of 100 years with no consideration of release until the prisoner has served at least three-quarters of the sentence will in almost all cases be a de facto whole life sentence. Identifying shorter fixed-term sentences that may also amount to de facto life imprisonment is harder and depends on a subtle understanding of the interplay between the age at which the sentence was imposed, demographic patterns and release procedures. A second type of life sentence, which is not labelled as life imprisonment but nevertheless can be identified as such, is indefinite post-conviction preventive detention. In several jurisdictions such detention may be imposed

Introduction 3 on persons convicted of serious offences but not formally sentenced to life imprisonment. This may happen either because life imprisonment is not a punishment within the sentencing court’s competence or because the court decided on a fixed-term sentence as an appropriate punishment for the crime concerned but left open the possibility of further indefinite detention by invoking a provision that allowed such detention on the grounds of the risk that the individual allegedly posed to society. There is considerable variation in the form that such detention takes. One potential bright line is between indefinite detention imposed on those persons who are found to have sufficient criminal capacity to be convicted of an offence and those who do not. However, even this distinction, which comes easily to lawyers, can and should be problematised when practice is considered, for this legal distinction may be implemented differently in different jurisdictions, even those that are outwardly similar. Overall, current knowledge about the various forms of de jure and de facto life imprisonment and the relationship between them is limited. In addition, a study of the situation in some countries that do not have life imprisonment was thought to be especially important. Accounts of how and why life imprisonment was abolished contribute a different perspective on the meaning of life sentences, while an analysis of attempts in these countries to reintroduce such sentences by the back door of very long fixed-term sentences or preventive detention, gives further insights into the tenacity of the concept of life imprisonment and the ideas that inspire it. Each chapter in this work therefore offers a unique insight into how life imprisonment in its various forms has been imposed, implemented, restricted or abolished in different parts of the world. Taken together, the various perspectives help develop our understanding of specific human rights issues that have emerged either directly or indirectly from the use and restriction of this ultimate sanction. III.  WHAT HUMAN RIGHTS ARE MOST RELEVANT TO LIFE IMPRISONMENT?

Whatever form life imprisonment takes, it is a drastic punishment that could infringe a wide range of human rights of the person serving a life sentence. We would put the right to human dignity at the core of all the human rights potentially relevant to both the implementation and imposition of life sentences. Fundamentally, life imprisonment, like all forms of imprisonment, infringes the right to liberty which is a core component of human dignity. Imprisonment also restricts and often infringes a range of other dignityrelated human rights, such as rights to family life, privacy and freedom of expression. Life imprisonment, which in practice is usually a long, and very

4  Dirk Van Zyl Smit, Catherine Appleton and Georgie Benford often a severe, term of imprisonment is particularly open to critique on these grounds. If life imprisonment is to be used at all in any system that recognises basic human rights, its imposition must therefore be justified carefully. The most common justification for life imprisonment is that it may be an appropriate sentence when imposed for crimes that are sufficiently serious to justify such drastic penal intervention by the state. In other words, it must be a proportionate punishment. It follows that there must be procedures in place for determining whether a life sentence is appropriate. Clearly therefore, at the stage of the imposition of life imprisonment, procedural human rights, rights of due process to ensure safe convictions and proportionate sentencing, are of great relevance. This oft-cited justification for the imposition of a life sentence on the basis of proportionality, however, may be subject to fundamental objections on human rights grounds. It may be argued that life imprisonment is such an affront to individual liberty and human dignity that it can never be a proportionate punishment for the state to have the power to punish an individual by imprisoning them until death. More subtly, certain forms of life imprisonment may always infringe human rights because of the way in which they are implemented. In particular it can be argued that whole life imprisonment infringes the fundamental dignity-derived human right to be ‘rehabilitated’, in the sense of having the possibility of becoming full members of free society. This argument is being pursued in different ways in various countries. What is important for current purposes is that it brings additional human rights into play in the context of life imprisonment, for it places an important positive duty on prison authorities and indeed on states to intervene in the implementation process of life sentences in a particular way. Of course, prison authorities already have positive duties with human-rights roots that go beyond injunctions not to ill-treat prisoners in their care. Ensuring prisoners’ human dignity, indeed their very survival, means that states have a basic duty to feed, house and clothe all prisoners. Providing prisoners with an opportunity to return to society goes beyond that. It requires states to set up procedures for considering the possible release of persons serving life sentences and opens up the possibility for a rights-informed debate about the adequacy of such procedures. Even more controversially, recognition of a right to be considered for eventual full participation in free society raises the difficult question of what facilities and opportunities persons serving life sentences are entitled to, as a matter of human rights, to improve themselves so that they can demonstrate their fitness to return to society as law-abiding citizens. This question is closely linked to key wider debates about the purposes of imprisonment. How these purposes are prioritised impacts on decisions on when sentences

Introduction 5 of imprisonment may be imposed and how they must be implemented in all countries that respect fundamental human rights. We return to these larger questions in the final part of this Introduction. IV.  KEY THEMES IN UNDERSTANDING LIFE IMPRISONMENT AND HUMAN RIGHTS

A.  The Challenge of ‘Life’ in the Americas As a geographical region in which the approach to life imprisonment is astonishingly diverse, the Americas provide a useful point of departure for elucidating the key themes of this book. The two chapters that form this first section deal with very different penal realities, yet they have in common a shared focus on human rights-derived constraints on the power of the state to penalise. In chapter one life imprisonment in the United States is considered by Marc Mauer and Ashley Nellis. Their focus is on the wider impact of life imprisonment on penal reform in that country, where, by the end of 2012, 159,520 prisoners were serving life sentences, a third of which were life without parole (LWOP) sentences. Mauer and Nellis point out that for some time life sentences in the US have been imposed freely and for an increasingly wide range of offences, and that even lifers with sentences for which parole is legally possible are being released less frequently. The number of LWOP sentences has increased even more quickly than other life sentences and they are being used not only as alternatives to the death penalty but as alternatives to life sentences with parole. Under these circumstances, life sentences generally are a component of the mass incarceration movement in the US. There are, however, countertendencies derived in significant part from a reconsideration of how the prohibition on ‘cruel and unusual punishment’ in the US constitution applies to life imprisonment. Successive Supreme Court decisions have greatly restricted the ability of courts to impose LWOP on juveniles, and law reform in California has restricted the scope of socalled ‘three strikes and you are out’ sentences, which are mandatory life sentences following conviction for a third felony. There is also evidence of the use of presidential and gubernatorial pardons to release prisoners serving life sentences for non-violent drug offences, in particular. However, the US picture remains one of mass incarceration in which life imprisonment continues to play a large part. Life imprisonment is manifestly not as important a sentence in South and Central America as it is in the USA, as shown by Beatriz López Lorca in chapter two. Only six—Argentina, Chile, Cuba, Honduras, Mexico (some federal states) and Peru—of the 19 Spanish language countries in the region

6  Dirk Van Zyl Smit, Catherine Appleton and Georgie Benford have provision for life imprisonment at all. Part of the reason for this is a widespread reluctance in the region to give the state power over convicted individuals for the rest of their lives, powerfully reflected in the absence of life imprisonment in so many Latin American countries. This is coupled with a formal commitment to the idea that all sentences should serve to ‘rehabilitate’ individuals, an ideal that has been much discredited in the US but which survives in the rest of the Americas. In these countries much more attention is paid to international instruments such as the American Convention on Human Rights, which the US has not ratified. Typically these instruments prohibit cruel punishment in much the same way as the US Constitution does, but go further to provide positively for the recognition of prisoners’ dignity (Article 5(2) of the American Convention) and their ‘social rehabilitation’.1 López Lorca reports, however, that, somewhat surprisingly, the distrust of state power in Latin America has not led to much controversy about life imprisonment in the six countries that do formally make use of it in the region. Even LWOP, which is found in Cuba and in three of the five Mexican states that have formal life imprisonment, has not been challenged systematically. This is not to say that there have been no changes to life imprisonment regimes as a result of human rights-based legal interventions: in Peru the Constitutional Court held that life imprisonment would only be constitutionally acceptable if all life prisoners had a possibility of release, and the law was altered accordingly. In Argentina, dissenting judgments in the Supreme Court have been very critical of various aspect of life imprisonment. The Inter-American Court of Human Rights has also intervened, inter alia by outlawing life imprisonment for children in Argentina. In so doing, it has gone much further than the US Supreme Court, which has edged towards outlawing LWOP for children on grounds of its disproportionate severity2 but has not been called upon to consider whether sentencing them to life imprisonment with a remote prospect of release is equally suspect. In all, the developments in the Americas demonstrate that a wider conception of

1  The commitment to ‘social rehabilitation’ is contained in Article 12(3) of the International Covenant on Civil and Political Rights which all the countries in the Americas, including the US, have ratified. However, the US is alone in making a reservation to its ratification of the ICCPR, which excludes acceptance of the binding requirement that its prisons should focus on the social rehabilitation of prisoners. 2 In its most recent decision, Montgomery v Louisiana (2016), the Supreme Court gave retroactive effect to its earlier decisions, described by Mauer and Nellis in chapter one, prohibiting mandatory LWOP for children. The consequence was that all mandatory life sentences that had been imposed when the individuals concerned were under the age of 18 when they committed the offence were set aside. They are either to be considered for parole immediately or to be resentenced against a new, very restrictive, standard, which would allow LWOP to be imposed only on the rarest juvenile offenders whose crimes reflect permanent incorrigibility.

Introduction 7 human rights can lead to more critical evaluation of life imprisonment, but that this has not been fully realised. B.  LWOP around the World Chapters in this section show that the controversies relating to LWOP are not limited to the Americas but extend to every continent. In chapter three, Kate Fitz-Gibbon reveals that although the constituent states of Australia have very different criminal justice systems, every one of them provides for LWOP. Although it has been subject to academic critique it is has not been challenged successfully in the courts. This is largely because the Australian national constitution has no bill of rights to provide a legal foothold for such challenges. Perhaps most controversially, in some Australian states there is even provision for LWOP sentences for children, despite Australia being a signatory to the UN Convention on the Rights of the Child, which specifically outlaws life sentences without the prospect of release when imposed on children under the age of 18 years. The lack of relevant national and regional human rights instruments has meant that penal reformers and litigants who wish to overturn LWOP sentences need to resort to international tribunals. In this regard it is important that the United Nations Human Rights Committee (HRC) found in 2014 that Australia infringed against the International Covenant on Civil and Political Rights (ICCPR) by holding two individuals, who had been sentenced to life imprisonment as juveniles, under a regime that had been modified to ensure that they could not be let out of prison before they were either in imminent danger of dying or physically incapacitated (Blessington and Elliot v Australia 2014). In coming to the conclusion that the life prisoners in Australia should have been in the position where their release would be considered at an earlier stage, the HRC relied not only on finding a contravention of the provision of the ICCPR that deals with juveniles (Article 24) against the background of the Convention on the Rights of the Child. It also held that the Australian policy contravened further provisions of the ICCPR: the prohibition on cruel, inhuman and degrading punishment and treatment (Article 7) and the duty that prison authorities have to orient prison regimes towards ‘social rehabilitation’ (Article 10(3)). As Fitz-Gibbon points out, the Australian government has not responded positively to the decision of the HRC: it has shown no inclination to change its law or practice. Nevertheless, the finding of the HRC is important, for most countries in the world, including every country considered in this book, are parties to the ICCPR. Life sentences from which there is no prospect of release may also be introduced by apex courts rather than by direct legislation. This is the somewhat surprising finding in chapter four and chapter five, where Jamil

8  Dirk Van Zyl Smit, Catherine Appleton and Georgie Benford Ddamulira Mujuzi and Madhurima Dhanuka consider the position in Uganda and India respectively. Legally, the two countries have in common that the implementation of life imprisonment is governed by legislation dating back to colonial times, which provides for the calculation of remission for persons serving life sentences. Over many years this had hardened into a practice that all persons serving life sentences had to be released after serving a fixed period: 20 years in Uganda and as little as 14 years in India. Both countries also still have provision for the death penalty and this has impacted directly on the interventions by their courts. As Mujuzi explains, when the Supreme Court of Uganda set aside the mandatory death sentences as unconstitutional in 2009, it allowed them to be converted into whole, ‘natural’, life sentences. The result has been confusion. Discretionary death sentences are still constitutional. Some courts continue to impose life sentences on the basis that life prisoners will automatically be released from them after 20 years while others are following the lead of the Supreme Court and imposing natural life sentences. In addition there has been a rise in de facto life sentences with fixed terms of up to 90 years, much longer than the periods after which life prisoners were routinely released in the past, and more significantly, well beyond the average life expectancy in this country. In India the situation is similar to that in Uganda. The only significant difference is that the death penalty has long been discretionary in India and in fact is used only very rarely. Instead life imprisonment is imposed, especially in high profile cases where a sentence of death may be controversial and divisive. However, as in Uganda, confusion is feared in the light of a recent major decision of the Supreme Court, which is fully described by Dhanuka in chapter five. In the leading case of Union of India v V Sriharan alias Murugan and others (2015) the life prisoners concerned were the convicted assassins of the former Prime Minister of India, Rajiv Ghandi. The issue of their release only arose when they were about to complete what hitherto had been regarded as the term after which they should be set free. The ruling by the Indian Supreme Court, that high courts have the power to decide how long life prisoners should serve before they are considered for release and that this period could be for the whole life of the individual, means that life sentences in India may well become much longer. This is a real concern as no less than 55.5 per cent of sentenced prisoners in India are already serving life sentences. What is noteworthy too is that both Uganda and India have constitutions with justiciable bills of rights but that these did not serve to halt what is in effect judicial legislation changing the meaning of life imprisonment. National constitutions can of course greatly limit the use of life imprisonment in general and of LWOP in particular. A prominent example is the major ‘life imprisonment’ decision of the German Federal Constitutional

Introduction 9 Court in 1977.3 In that case the German Court held that life imprisonment could only meet constitutional standards of human dignity and the rule of law if persons sentenced to life imprisonment had an opportunity for selfimprovement during their imprisonment, which would give them a prospect of being considered for release, and if a clear procedure for considering their release was in place. The European Court of Human Rights (ECtHR) has come to the same conclusion in a series of cases culminating in the decision of its Grand Chamber in Vinter and others v United Kingdom (2013). It is notable that this decision, although it is based on a finding that life sentences that do not give prisoners a prospect of release offend against the prohibition on inhuman and degrading punishment or treatment (Article 3 of the ECHR), relies heavily on the reasoning of the German Federal Constitutional Court. What the Grand Chamber of ECtHR does articulate quite clearly is that all European prisoners have a fundamental ‘right to hope’, something that LWOP sentences manifestly destroy. In her eloquent concurring opinion in the Vinter case Judge Power-Forde explained what this right to hope, which is encompassed in Article 3 of the ECHR, entails: [H]ope is an important and constitutive aspect of the human person. Those who commit the most abhorrent and egregious of acts and who inflict untold suffering upon others, nevertheless retain their fundamental humanity and carry within themselves the capacity to change. Long and deserved though their prison sentences may be, they retain the right to hope that, someday, they may have atoned for the wrongs which they have committed. They ought not to be deprived entirely of such hope. To deny them the experience of hope would be to deny a fundamental aspect of their humanity and, to do that, would be degrading.

In the light of these developments it is somewhat surprising to find that there are still a few European countries that have LWOP or other life sentences that are very similar to it. Hungary is prominent amongst them. Uniquely in the whole world, as far as we know, its Constitution specifically allows the imposition of LWOP. In chapter six, Miklós Lévay describes the complex interactions between European human rights law, which seeks to ensure that there are no wholly irreducible, hope-destroying life sentences, and the Hungarian legislature, which seems determined to keep LWOP in place. The only basis for compromise lies in the possibility that there may be some life sentences that exclude conventional procedures for granting conditional release (parole) but nevertheless retain the possibility that some other form of executive intervention will allow for the release of those serving them to be considered fairly. Lévay points out that the ECtHR has already once rejected executive release as practiced in Hungary. However,

3  The German context of the decision of the Federal Constitutional Court (BVerfG 21 June 1977) is explained by Axel Dessecker in chapter 18.

10  Dirk Van Zyl Smit, Catherine Appleton and Georgie Benford subsequent changes to the release procedure have satisfied a majority of Hungarian judges. Whether they will be upheld by the ECtHR remains to be seen. The situation in the Netherlands is similar to that in Hungary, as the only way in which life-sentenced prisoners can be released in that country is if they are pardoned by the King. In chapter seven, Wiene van Hattum and Sonja Meijer subject the law and practice of pardon in the Netherlands to close scrutiny. They conclude that although historically the system may have had some equitable features, it is increasingly less fair. It is now not only a system that is wide open to challenge when weighed against European human rights norms, it is also a system that, because of its uncertainties and the very limited prospects of release it confers on life prisoners in the Netherlands, adds greatly to the stress of the prisoners who are effectively serving LWOP sentences and indeed of the prison officers who are responsible for them. In chapter eight, which deals with life imprisonment in France, Marion Vannier focuses on the right to hope. She notes that the ECtHR has given even the harshest form of life imprisonment in France a clean bill of health, as theoretically even the worst offenders must be considered for release after they have served 30 years. Vannier emphasises, however, that a right in law to be considered for release may not be enough to give rise to hope in fact. On the contrary, the history of life imprisonment in France shows that there has long been the intention to enforce what is effectively an LWOP sentence on at least a narrow category of persons for what are regarded as the worst offences. Vannier concludes that they do not have a de facto right to hope. This is a danger that should be recognised both by lawyers and penal reformers. C.  Life Imprisonment and the European Convention of Human Rights The ECHR has impacted on life imprisonment in Europe in ways that go beyond the immediate debate about whether whole life imprisonment infringes fundamental human rights. An important aspect of this is the recognition, most recently by the Grand Chamber of the ECtHR in Khoroshenko v Russia (2015) (which deals with the rights of access of life prisoners to family members) that life imprisonment may affect the human rights of prisoners even more drastically than those of prisoners serving shorter fixed-term sentences. The wider impact of the ECHR is recognised by Catherine Appleton and Dirk van Zyl Smit in chapter nine. While they deal with the ongoing judicial ping-pong between the courts in Strasbourg and London about whether English procedural law provides individuals with life sentences for which no minimum period has been set with a realistic prospect of release, they also

Introduction 11 note other developments in English and Welsh life imprisonment law that have been shaped by the ECtHR over a long period. These have included positive changes to release procedures for the vast majority of life prisoners in England and Wales. Thanks to a series of decisions of the ECtHR, life prisoners now have their release on parole determined by a Parole Board, which is required to act like a court with a range of procedural safeguards, rather than by politicians deciding in private. Also significant is the extent of the recognition, inspired by the ECtHR, that prisoners who are serving life terms have a legal right to participate in training courses and other opportunities to rehabilitate themselves so that they can seek to convince the parole board that they should be released, since the danger that they pose to society has been reduced. Appleton and Van Zyl Smit note, however, that during the period that these reforms were introduced the number of prisoners serving life sentences has increased greatly. Particularly disastrous in this regard was the introduction in 2003 of Imprisonment for Public Protection (IPP), a fully indeterminate sentence imposed on persons convicted of a second serious offence, whose release was subject to the same criteria and parole board decisionmaking as those formally sentenced to life imprisonment. Although IPP was abolished in 2012, several thousand prisoners serving this sentence remain in prison. Appleton and Van Zyl Smit ask whether human rights-driven reform may disguise a harsher penal reality in which more life sentences are being imposed and longer periods are actually being served in prison than in the past when procedures were less compliant with human rights standards than is the case now. In chapter ten Sonja Snacken, Ineke Casier, Caroline Devynck and Diete Humblet address the problems that prisoners serving indeterminate terms face in Belgian prisons. They note that, while there is legal compliance with standards developed in European law for prospects of release for those facing formal sentences of life imprisonment, those who are being held under other legal provisions for indeterminate detention are less assured of having a realistic prospect of release. This applies in particular to mentally ill persons, who in Belgium can be held indefinitely in prison even if they were found not to be criminally responsible for their actions, and to people sentenced to indefinite preventive detention, sometimes in addition to life imprisonment. Snacken and her colleagues go beyond the consideration of formal requirements and concentrate on the human rights implications of the conditions in Belgian prisons, which have many shortcomings; particularly in the area of the treatment of mental illness in prison where both the ECtHR and the European Committee for the Prevention of Torture (CPT) have found Belgian treatment conditions to be degrading and thus in contravention of European human rights standards. Against this background, human rights-based questions raised in Belgium about the right of prisoners to commit suicide have particular salience.

12  Dirk Van Zyl Smit, Catherine Appleton and Georgie Benford If many of the European contributions focus on the strengths of the e­ merging human rights jurisprudence of the ECtHR on life imprisonment, chapter eleven, in which Diarmuid Griffin and Ian O’Donnell deal with the situation in Ireland, points to one of the more problematic decisions of that Court (Lynch and Whelan v Ireland 2014). At stake was a challenge to the way in which the release of life prisoners was considered in Ireland; involving an informal parole ‘system’ with no clear legal basis, in which the parole board members were the personal appointees of the Minster of Justice, as opposed to a judicial or court-like body. The release of life prisoners is within the virtually untrammelled discretion of the Minister, who is not bound in any way by the recommendations received from the parole board. Yet, as Griffin and O’Donnell explain, the ECtHR did not intervene to ensure a more robust release procedure. Its key reason for doing so was that Irish life sentences were imposed with a solely retributive (punishment) objective in mind. It was not the case, as it is in English law, that life prisoners should be released after they have served after a minimum period set for purposes of punishment, if they no long pose a danger to society. On the contrary, Irish constitutional law excluded detention on grounds of dangerousness alone. Under these circumstances the ECtHR held, following similar judgments of the Irish courts, parole was in the power of the executive and strict procedures were not required. This approach is redolent of irony. The Irish prohibition on detention of ‘the dangerous’ has its roots in a human rights-based protection of liberty, but in this context it has been applied to deny the right to a rigorous and procedurally fair review procedure for life sentences. D.  Countries without Life Imprisonment Consideration of the countries that have no life imprisonment provides a welcome antidote to the impression, which may have been created by the chapters outlined thus far, that critiques of life imprisonment must be based on modern human rights instruments that at best provide only for reducing the worst excesses of this form of punishment. In chapter twelve, Inês Horta Pinto notes that Portugal abolished life imprisonment in 1884 and that its constitution has prohibited life imprisonment and other forms of indefinite detention since 1911. The maximum sentence of imprisonment is 25 years and exceptions for the indefinite detention of persons who are seriously mentally ill are closely circumscribed and carefully monitored. Horta Pinto attributes the opposition to life imprisonment to the belief in human perfectibility, which manifested itself from the late eighteenth century onwards and is reflected in the reasoning of the legislature at the time of its initial abolition. On this approach, all prisoners should be given the opportunity to prove themselves in free society again. Horta Pinto also draws attention to the question of how Portugal’s principled

Introduction 13 opposition to life imprisonment has been reflected in its attempts to ensure that co-operation with other countries in matters such as extradition does not lead to Portugal having to accept life imprisonment via a back door. Horta Pinto concludes that Portugal is in the position to take the moral lead in ensuring that life imprisonment is abolished on human rights grounds in Europe and elsewhere. The abolition of life imprisonment is also the focus of chapter thirteen where Giovanna Frisso considers the position in Brazil, another country which has a constitutional prohibition on life imprisonment. Frisso gives an account of a long struggle against life imprisonment that keeps reasserting itself in various ways. In some historical instances military regimes have amended the Constitution of Brazil, thus reintroducing life imprisonment for a while. More insidiously however, there have been more recent attempts to introduce fixed-term sentences that are longer than the current 30-year maximum and amount to de facto life terms. Frisso pays considerable attention to the details of what de facto life imprisonment could mean. She calculates that under Brazilian prison conditions, and given the average life expectancy of the class of persons incarcerated in Brazil, a 50-year fixed-term sentence would mean that prisoners subject to it are likely to die in prison. Their sentence would effectively be whole life imprisonment. Chapter fourteen, in which Javier de León Villalba considers the wider issue of long-term prison sentences in Latin American countries that do not have life imprisonment, complements both chapter thirteen on Brazil and the account of Latin American countries with life imprisonment in chapter three. De León Villalba notes that while the majority of these countries formally do not have life imprisonment there is a tension between theory and practice. The theory, as in Portugal, is based on a strong belief in human perfectibility, as reflected in a commitment to the rehabilitative function of imprisonment. The reality is harsh prison conditions exacerbated by long delays in trials and widespread prison overcrowding. De facto life imprisonment is common, with countries that formally do not have life imprisonment imposing terms as long as 50 years or more. In De León Villalba’s view the best solution would be to focus directly on prison reform. Only if prison conditions are improved to meet international and regional human rights standards can issues around de facto life imprisonment be tackled effectively. E.  The (Re)introduction of Life Imprisonment In contrast to those counties that do not have life imprisonment are those that have introduced it in the relatively recent past. Here too, human rights values have played an unexpected part. Many countries in Eastern Europe

14  Dirk Van Zyl Smit, Catherine Appleton and Georgie Benford and the Balkans were left, after the fall of the Soviet Union, with legal systems that provided for the death penalty but not for life imprisonment. Human rights-based European institutions, such as the Council of Europe, which these states aspired to join, pressed them to abolish the death penalty and reform their prison systems. In chapter fifteen, Filip Vojta tells of the choices made by the new states that emerged after the breakup of the former Yugoslavia, which had had provision for capital punishment but not life imprisonment. In the early 1990s all of the states abolished capital punishment. However, only Macedonia and Kosovo initially adopted life imprisonment, while Slovenia, Croatia, Serbia, Bosnia and Herzegovina, and Montenegro all enacted fixed-term sentences as their ultimate penalties. This picture gradually changed and the ultimate sanctions in the states that formerly comprised Yugoslavia have become harsher. In 2001 after an acrimonious debate, life imprisonment became the ultimate penalty in Slovenia. This did not happen in the other states without life imprisonment. However, all of them raised their maximum fixed-term sentences to the extent that prisoners who are serving them are likely to remain in prison for as long as those sentenced to life imprisonment in the other former Yugoslav states. Poland also re-introduced life imprisonment to replace the death penalty in 1997 in the wake of the fall of communism. In chapter sixteen, Maria Ejchart-Dubois, Maria Niełaczna and Aneta Wilkowska-Płóciennik reflect on this process. They note that since this change was introduced the penal climate has become increasingly repressive. Moreover, as the minimum period before release may be considered is 25 years (and longer in some cases), no life prisoner in Poland has yet been considered for release. Their research, conducted with life prisoners and prison officers as well as a review of court judgments, shows that the system is not oriented towards preparing prisoners for eventual release. Ejchart-Dubois, Niełaczna and WilkowskaPłóciennik further speculate that in the light of their research findings it may not even be realistic to expect many of these prisoners to be released following the completion of their minimum terms. The introduction of life imprisonment into Spain, the subject of chapter seventeen by Jon-Mirena Landa Gorostiza, followed a different trajectory to the states in Eastern Europe and the Balkans. For many years prior to its introduction in June 2015, there had been no sentence of life imprisonment in Spain. Although it had not been formally prohibited by the national Constitution, Spanish scholars reasoned, like their Portuguese and Latin American counterparts, that a strong commitment, spelt out in the Constitution, to the rehabilitation of prisoners as a human right meant that a sentence such as life imprisonment, which had the potential of excluding an individual permanently from society, had no place in the Spanish system. Landa shows that at a policy level this understanding was gradually

Introduction 15 ­ ndermined by diminishing possibilities for the release of prisoners, paru ticularly those c­ onvicted of terrorism, who were serving long fixed-term sentences. The result was that, when discretionary life sentences with a review after a fixed period were introduced, they did not change the existing system significantly. At the time of writing, constitutional challenges to life imprisonment in Spain are still pending and there is the possibility that the law will be repealed by a new government. However, as in the states of the former Yugoslavia, the impact of increasing crime control concerns on liberal anti-life imprisonment policy is clear in Spain too. F.  Life Imprisonment and Preventive Detention The final section groups together three chapters that pay particular attention to indeterminate post-sentence preventive detention. The German variation of this, nachträgliche Sicherungsverwahrung, is considered in chapter eighteen by Axel Dessecker. He explains that in German criminal law there is a ‘dual track’ system.4 A clear distinction is drawn between punishments, such as life imprisonment, which follow conviction and are related to the heinousness of the offence and the degree of guilt of the individual, and ‘measures’, which can be imposed on convicts because of their dangerousness. The latter may lead to indeterminate loss of liberty. However, such measures are not regarded as criminal penalties and therefore historically have not been subject to all the safeguards, such as prohibitions against double, disproportionate or retrospective punishments, that form part of human rights-based protections against abuse of the criminal process. As Dessecker notes, in 2009 the ECtHR rejected this fundamental distinction of German law and declared that Sicherungsverwahrung was a criminal penalty as in this application it was not sufficiently differentiated from criminal punishment because, inter alia, those subject to it were not treated significantly differently to prisoners serving life sentences (M v Germany 2009). This led to considerable law reform in Germany, for although the German Constitutional Court did not concede that Sicherungsverwahrung was a criminal penalty, in the light of the decision of the ECtHR. It ordered the state to restrict its use to convicted persons who were mentally ill and to introduce better treatment programmes and conditions of detention, which would differentiate them more clearly from ‘ordinary’ prisoners. This was duly done and in early 2016 the ECtHR upheld the new system as providing a fair

4  Variations on the dual track system are also found in a number of other countries discussed in this book, including Belgium, Brazil, Portugal, Spain and the Netherlands, as well as the Nordic countries.

16  Dirk Van Zyl Smit, Catherine Appleton and Georgie Benford basis for the continued detention of a convicted individual, who remained in preventive detention long after he had completed his initial sentence, as he was still dangerous because of him being of ‘unsound mind’.5 One may doubt whether the ECtHR will be as sympathetic to the form of indefinite post-sentence detention in Switzerland, on which Anna Coninx focuses in chapter nineteen. The doctrinal distinction between the two tracks of criminal penalties and preventive measures is broadly the same in Switzerland and in Germany. However, in Switzerland in the 1990s a popular initiative amended the Swiss Federal Constitution to provide also for detention until the ends of their lives of sex or violent offenders who were deemed to be ‘untreatable’. Only if new scientific findings can demonstrate that these persons can be cured and thus no longer represent a danger to the public may their release even be considered. If an individual in this category is released, the authorities granting the release must accept liability if the person reoffends. This extraordinary measure has only been finally enforced in one case. Coninx uses it as a point of departure to reflect on the shortcomings of using a right to rehabilitation as a device for limiting the impact of indeterminate detention, for the virtually irrefutable assumption is that someone who is subject to this measure cannot be rehabilitated. Instead, she argues for a ‘desert-based’ limit on all forms of life imprisonment, including those that have been designated as preventive detention. In chapter twenty, the final chapter, Tapio Lappi-Seppälä does not so much focus directly on post-conviction preventive detention as place it in a wider context of indeterminate loss of liberty in Nordic penal systems. He points out that, while there are legally significant differences in this regard between the four countries he considers—Norway, Denmark, Sweden and Finland—, there are interesting similarities in the overall trajectories of their use of indeterminate preventive measures. In law, notoriously Norway does not have any provision for life imprisonment while the other three countries do have it. However, when the legal regime is examined more closely, it becomes clear that Norway does make use of a second-track, post-sentence preventive detention in the form of fovaring, which allows it to detain indefinitely individuals who have served their full sentences if they continue to be considered dangerous. There is also provision for the indefinite compulsory detention of persons who commit serious crimes but do not have criminal capacity. Lappi-Seppälä shows that there are subtle differences in the laws of the other three countries, but a mixture of forms of preventive detention allow them each to detain serious offenders who are regarded as dangerous

5  Being of ‘unsound mind’ is a basis for detention recognised by Art 5(1)(e) of the ECHR: see Bergmann v Germany (2016). Someone can be of ‘unsound mind’ in this sense while having sufficient criminal capacity to be convicted of an offence, albeit with diminished responsibility.

Introduction 17 for long periods of time. Yet the overall numbers are relatively low, both in international comparison and when compared to the 1950s and 1960s when countries in the region made much freer use of preventive detention measures. Overall there are also significantly more safeguards in place in the Nordic countries than in other jurisdictions to ensure that these various forms of preventive detention are not overused.

V.  FINAL THOUGHTS

Our overview of the outstanding features of the chapters in this volume cannot begin to do justice to the wealth of information and insights that they provide. Nevertheless, we wish to pull together some of what they teach us about our key concepts. As far as life imprisonment is concerned, it is clear that the distinctions between life sentences with a prospect of parole, life sentences without a prospect of release (LWOP) and whole life sentences from which no form of release, not even by way of a pardon, is possible, is much less clear in practice than it may be in legal theory. For release to be possible at all, there needs to be preparation and evaluation in prison, and fair and transparent procedures for considering release, led by judges or others who can act independently of public pressure; and this must all be made clear to life prisoners from the outset of the sentence. If all these procedures are not in place, the notion that any life sentence can be something other than a prolonged wait until death in detention is a mere chimera. A second insight into the concept of life imprisonment that can be derived from this book is that to make sense of what it means in practice, forms of indeterminate detention that are not formally labelled ‘life imprisonment’ have to be considered too. More work needs to be done on what can be regarded as de facto life imprisonment, although scholars, such as Frisso in chapter thirteen, are beginning to grapple with this issue. This is not merely an intellectual exercise, as identifying the fixed-term sentences that should be regarded as life imprisonment means that those subject to them can claim the same rights as other life prisoners. Similarly, this book demonstrates the many overlaps between indeterminate preventive detention and life imprisonment formally so defined. Preventive detention, too, can take many forms. Lawyers’ distinctions between punishment and measures, or between offenders acting with a ‘guilty mind’ and others who commit criminal acts but lack criminal capacity, easily break down in the face of popular pressure to exclude from society all individuals deemed to be dangerous. Yet persons subject to any form of indeterminate preventive detention require protection against abuses of power. The safest strategy is to make sure that, no matter what form indeterminate preventive detention may take, there are robust procedures in place to ensure that

18  Dirk Van Zyl Smit, Catherine Appleton and Georgie Benford people are not detained for longer than they should be, or worse still, have no realistic prospects of release. Taken together, the chapters of this book confirm that human rights concepts offer many resources for those who wish to critique life imprisonment from a clear normative perspective. Life prisoners, more than most other prisoners serving fixed-term sentences, may have a wide range of their rights curtailed in ways that go beyond the ‘ordinary’ pains of imprisonment. It seems fair to say that some of the most interesting developments in recent years have been in the European context where the prohibition on inhuman and degrading treatment or punishment in Article 3 of the ECHR has been developed both to provide a substantive protection against the indignity of detention without hope and the beginnings of procedural safeguards for ensuring a realistic prospect of release. Related to this is the growing recognition of a right, also derived from Article 3, of life prisoners, like other prisoners, to improve (rehabilitate) themselves while in prison so as to increase the possibility that they will be released. For those outside the remit of the ECHR, it is important that the same human rights are recognised in other instruments. Article 12(3) of the ICCPR speaks more clearly of a right to ‘social rehabilitation’ than does the ECHR, and as we saw in the case of Australia it can be deployed to justify limiting particularly harsh forms of life imprisonment too. Many national constitutions offer similar points of departure both for a right to self-improvement and for procedural safeguards when release is considered. Prisoners’ rights generally are recognised to be important too, for no rehabilitation is possible in overcrowded conditions where fundamental rights are denied. The true human rights challenge, as a number of contributors to this book recognise, is to interpret and apply these all rights effectively in the face of the traditional theories of punishment that are used to justify life imprisonment, notwithstanding that it is always a harsh form of penalty. From a ‘just deserts’ perspective the contention is sometimes that no-one should ever be imprisoned without a realistic prospect of release, for whole life imprisonment is such an affront to fundamental human dignity that it can never be regarded as acceptable on retributive grounds alone. However, as the chapter on Ireland shows, life sentences justified on purely retributive grounds may be less vulnerable to criticism on the grounds that human rights standards require robust and fair release procedures. It is sometimes argued that because such sentences do not claim to serve a rehabilitatory purpose, complex procedures for considering whether a prisoner has been rehabilitated are not necessary. This argument cannot succeed in the face of the proposition that the fundamental human rights of all prisoners demand that they be given the opportunity to rehabilitate themselves.

Introduction 19 Happily, this last proposition is increasingly being accepted, particularly in European human rights law, but also internationally.6 However, as the chapter on Switzerland demonstrates, human rights-based critics of life imprisonment should be aware of the implications of what they wish for. Using rehabilitation as the core argument to limit the impact of life imprisonment may have the effect that people who cannot demonstrate that they have been ‘rehabilitated’ to the extent that they can take up their place in free society again, in a system where the odds may be severely stacked against them, are excluded from any amelioration of their sentences. It is against this backdrop that we believe that the inclusion of a number of chapters that describe systems where, on human rights grounds, life imprisonment has been outlawed completely (and other forms of indeterminate preventive detention have been curtailed very severely) has particular merit. These chapters explain the necessity of ensuring, on human rights grounds, that the state does not have unlimited power over the liberty of the individual. The clarity of the argument is compelling, not least because it accepts the importance of opportunities for rehabilitation but also recognises that its ‘success’ can never adequately be measured while someone is in prison. The accounts of states without life imprisonment have demonstrated that the need for vigilance, lest life imprisonment is reintroduced, either by the back door of very long fixed-term sentences or by the front door of amendment to their penal codes. However, increasingly the compatibility of life imprisonment in all its forms with fundamental human rights norms is being challenged, also at the level of the ECtHR. Notably, in Öcalan v Turkey (No 2) (2014) Judge Pinto de Albuquerque, who concurred with the unanimous decision of his colleagues that the whole life sentence imposed on Öcalan infringed Article 3 of the ECHR, went further and roundly condemned all forms of life imprisonment as contrary to fundamental human rights. This may well be a harbinger of the debates about the relationship between life imprisonment and human rights in the future. REFERENCES

United Nations Human Rights Committee (1992) General Comment 21, Article 10, Forty-fourth session, 1992. Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.1 at 33. Geneva, United Nations Human Rights Committee. 6 See for example General Comment no 21 of the Human Rights Committee (1992: para 10): ‘No penitentiary system should be only retributory; it should essentially seek the reformation and social rehabilitation of the prisoner.’

20  Dirk Van Zyl Smit, Catherine Appleton and Georgie Benford TABLE OF CASES

Domestic Cases (Germany, USA and India) BVerfGE 45, 187 (21 June 1977, 1 BvL 14/76) Montgomery v Louisiana, 577 U.S. ___ (2016) Union of India v V Sriharan alias Murugan and Others, 2 December 2015 WP (Crl) No 48 of 2014 European Court of Human Rights Bergmann v Germany App no 23279/14 (7 January 2016) Khoroshenko v Russia App no 41418/04 (30 June 2015) Lynch and Whelan v Ireland App nos 70495/10 and 74565/10 (8 July 2014) M v Germany App no 19359/04 (17 December 2009) Öcalan v Turkey (No 2) App nos 24069/03, 197/04, 6201/06 and 10464/07 (18 March 2014) Vinter and others v United Kingdom App nos 66069/09, 3896/10 and 130/10 (9 July 2013) Human Rights Committee Blessington and Elliot v Australia (2014) UN Doc CCPR/C/112/D/1968/2010

Part I

The Challenge of ‘Life’ in the Americas

22

1 The Impact of Life Imprisonment on Criminal Justice Reform in the United States MARC MAUER AND ASHLEY NELLIS

I. INTRODUCTION

A

S OF 2015 President Barack Obama had issued sentence commutations to 184 individuals held in US federal prisons, nearly all of whom were convicted of drug charges, and one-third of whom were serving life sentences (US Department of Justice 2015). Among them was Clarence Aaron of Mobile, Alabama. As a 23-year-old college student with no criminal record, Aaron had introduced a classmate to a drug dealer he knew from high school. Aaron was neither a buyer nor seller of drugs, but was present at drug transactions and was paid $1,500 by the dealer. Several in the group were charged with a drug conspiracy offence for sale of powder and crack cocaine, and Aaron’s friends testified against him in exchange for reduced sentences. In 1993, Aaron was sentenced to three life prison terms. Over the course of two decades in prison, Aaron studied religion, economics and photography, and worked in a prison textiles factory. After several rejections of his application for a commutation, Aaron was finally granted release by President Obama in 2013 after serving 20 years in prison (Currier 2013). This case is but a window into the reality of life imprisonment in the United States. The nearly four-decade historic rise in the use of incarceration in the US also produced a vast expansion of the imposition of life sentences, to a degree hitherto unknown in any democratic nation. These developments present profound concerns regarding human rights in the American criminal justice system. But at a moment of potential justice reform and

24  Marc Mauer and Ashley Nellis decarceration, the massive use of life imprisonment also raises substantial challenges to prospects for change. In the present chapter, we explore the American experience of mass incarceration as a backdrop for the overuse of life sentences. Next, we examine the political landscape in the US that has enabled and encouraged states and the federal system to become increasingly punitive, followed by a discussion of the effect of the nation’s overuse of life sentences on the acceptable punishment ranges for less serious crimes. In the fourth section, we document the human rights violations that accompany the use of life sentences with no possibility for parole in the US; we then examine the prospects for criminal justice reform more broadly and, finally, assess the challenges to eliminating America’s mass incarceration problem presented by the continued reliance on life sentences. II.  MASS IMPRISONMENT AND THE MASSIVE USE OF LIFE SENTENCES

Since the early 1970s the US has expanded its incarcerated population at a rate that is unprecedented in US history or that of any other nation. From a prison and jail population of about 330,000 in 1972, the system has bloated to the point of incarcerating 2.2 million persons behind bars as of 2014. The US rate of incarceration of 698 per 100,000 is the highest of any major nation in the world and is more than five times the rate of most industrialised nations (Walmsley 2015). While a number of states have achieved substantial reductions in their prison populations in recent years and the overall scale of imprisonment has now essentially stabilised, it is not declining to any significant degree. While the policy, fiscal and moral issues surrounding mass incarceration have achieved increasing prominence in public discourse, issues regarding long-term prisoners and those convicted of serious offences have engendered little public discussion. To this day, the Bureau of Justice Statistics, the well-regarded data analysis section of the Department of Justice, has not issued any comprehensive data on the number of individuals serving life or long-term sentences. Estimates of the number of people serving life prison terms in the US have been provided in several policy reports published by The Sentencing Project since 2004 (Mauer, King and Young 2004; Nellis and King 2009; Nellis 2013). Based on data provided by state and federal departments of corrections, these analyses present a portrait of the scale of life imprisonment in the US, along with trend data and demographic details. As of 2012, there were 159,520 people serving a life sentence in the US. This constitutes a remarkable one out of every nine (11 per cent) imprisoned persons in the country. As seen in Figure 1.1, the increase in the number of life sentence prisoners has also been dramatic, rising from an estimated 34,000 in 1984.

The Impact of Life Imprisonment on Criminal Justice Reform 25 180,000

159,520

160,000 140,000

127,677

132,000

2003

2005

142,785

120,000 100,000 80,000

69,845

60,000 40,000

34,000

20,000 0

1984

1992

2008

2012

Figure 1.1:  The Expansion of Life Sentences in the United States, 1984–2012 Sources: American Correctional Association (1984); Maguire, Pastore and Flanagan (1993); Mauer, King and Young (2004); Liptak (2005); Nellis and King (2009); Nellis (2013).

The rate at which offenders are sentenced to life imprisonment varies considerably across the country. As at 2012, in seven states—Alabama, California, Massachusetts, Nevada, New York, Utah and Washington— more than 15 per cent of the prison population is sentenced to life. At the lower end of the scale, five states—Arizona, Connecticut, Indiana, Maine and Montana—have less than 4 per cent of their prison population serving life (Nellis 2013: 6). In addition, Alaska is the only state without a life sentence provision, though de facto life sentences are used.1 The US sentencing system is also marked by a strong tendency to impose not only life sentences, but increasingly sentences of life without the ­possibility of parole (LWOP). An estimated 49,000 persons were serving such sentences as of 2012, representing nearly a third of all life sentences (Nellis 2013: 6). With the exception of just a handful of persons who gain executive clemency after serving decades in prison, all of these individuals can expect to die in prison. It is also notable that the scale of increase of both life sentences overall and LWOP sentences has been rising markedly in recent years, even as the overall institutional population is stabilising. From just 2008 to 2012 there was a 12 per cent rise in the number of persons serving a life sentence, and a 22 per cent rise in those serving LWOP sentences (Nellis 2013: 13). 1  The 1993 Alaska Statutes: 12.55.125 Sentences of Imprisonment for Felonies, states, in part: ‘A defendant convicted of murder in the first degree murder … under AS 11.51.150 (a) (1) shall be sentenced to a definite term of imprisonment of at least 20 years but not more than 99 years.’ In some instances, such as death of a police officer, a sentence of 99 years is the mandatory minimum allowable sentence.

26  Marc Mauer and Ashley Nellis The US is also unique among world nations in allowing the imposition of LWOP sentences for juveniles under the age of 18. While such cases are virtually unheard of elsewhere in the world, there are about 2,500 such cases in the US today (Nellis 2013: 11). As a consequence of two significant decisions by the US Supreme Court in 2010 and 2012 those numbers can be expected to decline somewhat in the coming years as prisoners in some states will qualify for resentencing to a term less than life (Graham v Florida 2010; Miller v Alabama 2012). We note as well that there is an undetermined, but likely substantial, number of people serving ‘virtual life’ sentences in the US (see Henry 2012). These are individuals sentenced to prison terms of at least 50 years which, when imposed on a 30-year-old offender, could also equate to life ­imprisonment.2 One example of the means by which an ‘alternative’ to a life sentence can be imposed was the action by the governor of the state of Iowa following the US Supreme Court’s striking down the imposition of mandatory LWOP terms for juveniles. In order to avoid a situation whereby most of the affected individuals might apply for a resentencing, the governor commuted the life sentences, but established a 60-year minimum term before an individual could be considered for parole. It will be the rare person serving one of these terms who will ever be released from prison. As is true of incarceration overall in the US, the population of individuals serving life sentences is heavily skewed by race and class (Nellis 2013). Nearly half (47 per cent) of life sentence prisoners are African American, including 62 per cent of those in the federal prison system. In some states, the percentage of lifers who are black is quite dramatic, as high as 77 per cent in Maryland and 72 per cent in Georgia (Nellis 2013: 9). America’s longstanding issues of race and class are enmeshed with its punitiveness. While African Americans have higher arrest rates for violent crimes than other groups, the degree of punishment imposed for such offences is at least in part a function of the public perception of criminal involvement. In a 2002 survey, for example, Ted Chiricos and colleagues studied various crime policy preferences to determine whether one’s own race was a predictor in policy views, net of other relevant factors (Chiricos, Welch and Gertz 2004). The researchers gauged public preferences for the following policies: ‘making sentences more severe for all crimes’; ‘executing more murderers’; ‘making prisoners work on chain gangs’; ‘taking away television and recreation privileges from prisoners’; and ‘locking up more juvenile offenders’. Their findings showed that whites who attributed higher proportions of serious crime to African Americans were significantly 2  Whether a lengthy sentence constitutes a ‘virtual life’ sentence depends on a number of different factors such as the age of the individual, the term imposed and the jurisdiction in which the person is sentenced.

The Impact of Life Imprisonment on Criminal Justice Reform 27 more likely to support punitive policies. This was not the case for blacks or Hispanics. More recent research in this area found similar results (Semukhina and Demidov 2011). III.  LIFE IMPRISONMENT IN THE US AS AN OUTGROWTH OF THE AMERICAN POLITICAL ENVIRONMENT

The massive imposition of life sentences in the US is both an outgrowth of the American commitment to punishment and, in turn, a major contributor to the scale of punishment. While there has been much scholarly focus on the four-decade rise in incarceration in the US (Clear and Frost 2013; Mauer 2006; National Research Council 2014), there has been relatively little attention focused on the fact that US rates of incarceration were higher than in comparable nations even prior to these developments. At the inception of the prison expansion in 1972 the rate of incarceration in prison and jail was about 160 per 100,000 (Mauer 2006: 17). This rate was about two-to-three times that of most industrialised nations. So while the scale of the differential between the US and other nations has risen in recent decades, it is also the case that the US maintained a larger commitment to punishment even before the historic increase. This approach to punishment helps us to understand the development of mass incarceration since that time. The comprehensive assessment of these developments by the National Research Council (2014) concluded that mass incarceration was essentially a product of changes in policy, not crime rates, over a period of several decades: The empirical portrait … points strongly to the role of changes in criminal justice policy in the emergence of historically and comparatively unprecedented levels of penal confinement. As a result of the lengthening of sentences and greatly expanded drug law enforcement and imprisonment for drug offences, criminal defendants became more likely to be sentenced to prison and remain there significantly longer than in the past. (National Research Council 2014: 34)

Why, though, has there been such a uniquely American zeal to punish? Varying theories point to such features as the impact of the individualised social structure, or ‘frontier mentality’, in the US, in comparison to the greater social welfare orientation in European nations (Sarat and Martschukat 2011); the politicised nature of American criminal justice, including elected prosecutors and judges, as opposed to the civil service structure of those positions in most industrialised nations (Tonry 2013); and the history and legacy of racism in American society, as played out through the social control of the justice system (Alexander 2012; Garland 2001). Anthony Doob and Cheryl Marie Webster also note the relationship between high incarceration rates and other societal social values, such as

28  Marc Mauer and Ashley Nellis minimum wage policies (Doob and Webster 2014; see also Sutton 2000; Western 2006). They point to a body of research which demonstrates that nations with low rates of economic disparity and generous social welfare policies also generally maintain low imprisonment rates. IV.  LIFE IMPRISONMENT EXACERBATES THE SEVERITY OF THE PUNISHMENT ENVIRONMENT IN THE US

While the extensive use of life imprisonment, along with the death penalty, is in many ways an outgrowth of the American commitment to punishment, it also in turn influences the scale of punishment and the development of mass incarceration. The primary means by which this takes place is through the structure of the sentencing system. Sentencing systems, whether determinate, indeterminate, or a mix of the two, are generally proportional in structure. That is, the key factors determining the degree of punishment to be imposed in a given case are the severity of the offence and the prior record of the offender. So murder is punished more harshly than robbery, which in turn is punished more harshly than burglary, and so on. In looking at other industrialised nations, virtually all have repealed capital punishment and only impose life imprisonment sparingly. The contrast to sentencing policies in the US can perhaps be seen most dramatically in the sentencing structure in Norway, a nation with a rate of incarceration of about 71 per 100,000 (Walmsley 2015). Following the tragic massacre of 77 people (including 69 individuals on the island of Utøya, many of whom were children) by Anders Behring Breivik in 2011, he was sentenced to the maximum penalty for that crime, 21 years of imprisonment (Appleton 2014).3 To place some perspective on this, Weldon Angelos was a 24-year-old music producer in the state of Utah who was convicted of three separate sales of marijuana of about $300 each to an undercover officer in 2002. On each of these occasions he was in possession of a weapon, which he did not use nor threaten to use. Because of the mandatory sentences that apply to many federal drug and gun crimes, Angelos was sentenced to serve 55 years in prison. At the time of sentencing, Judge Paul Cassell, a self-described conservative Republican, stated: The court believes that to sentence Mr. Angelos to prison for the rest of his life is unjust, cruel, and even irrational … It is also far in excess of the sentence imposed for such serious crimes as aircraft hijacking, second-degree murder, espionage, kidnapping, aggravated assault, and rape. … To correct what appears to be an 3 Breivik was sentenced to 21 years in prison, which, under Norwegian law, can be repeatedly extended for five years for purposes of preventive detention.

The Impact of Life Imprisonment on Criminal Justice Reform 29 unjust sentence, the court also calls on the President to commute Mr. Angelos’s sentence to something that is more in accord with a just and rational punishment. (Abramsky 2006: 1)

Thus, the upward pressure on sentencing severity that is exerted by the death penalty and life imprisonment at the top of the sentencing scale in the US is quite substantial, to the point where a mid-level drug seller in the US is punished far more harshly than a mass murderer in Norway. These effects can be seen throughout the sentencing structure, affecting penalties for car theft, larceny, assault and other lesser offences, as well as for more serious crimes. Comparative research on sentencing severity is relatively limited, but studies conducted in the 1990s demonstrate this point. A review of sentencing severity among nations found that the US is distinct in its tendency to require long sentences for offences that do not involve serious violence (Lynch and Pridemore 2011). Despite comparable rates of property crime and less serious violent offences, the US incarcerates at a higher rate and for longer periods than developed nations like England, Sweden and Australia. Its sentences are also much longer for drug offences. Similar studies have concluded that differences in crime rates account for only a fraction of the variation in prison populations among European countries, as well as New Zealand and Australia (Young and Brown 1993). The impact of sentencing severity in contributing to mass incarceration has been documented by the National Research Council. Their report on the causes of high rates of incarceration concluded that the 222 per cent growth in the rate of state imprisonment between 1980 and 2010 was entirely explained by changes in sentencing policy. Half of this effect was produced by an increased likelihood of incarceration per arrest and half by increases in time served in prison (National Research Council 2014: 53–55). V.  HUMAN RIGHTS CONCERNS SURROUNDING LIFE WITHOUT PAROLE

Along with mass incarceration and the outlier position of the US among industrialised nations in retaining the death penalty, the massive use of life imprisonment raises fundamental human rights concerns. Most of these concerns hinge on the issue of proportionality. That is, there is broad international agreement that punishment ought to fit the crime; international standards oppose the imposition of sentences that are grossly disproportionate to the offence (Van Zyl Smit and Ashworth 2004). A number of treaties spell this out specifically, including Article 5 of the Universal Declaration of Human Rights, Article 7 of the International Covenant on Civil and Political Rights and Article 5(2) of the American Convention on Human Rights. Many nations have also adopted policies rejecting the use of cruel

30  Marc Mauer and Ashley Nellis and ­unusual—or inhumane and degrading—punishments, under which they generally include the rejection of whole life sentences and sometimes even all life sentences (Van Zyl Smit 2010; Appleton 2015). Most recently, in 2013 the European Court of Human Rights in Vinter and Others v United Kingdom, ruled that whole life incarceration without the prospect of release violates Article 3 of the European Convention on Human Rights. It held that even those who had been sentenced to life terms with no review in place must have a ‘right to hope’. The ruling required that a mechanism be in place to allow consideration of release if the penological justifications for the original sentence had changed over the ensuing years. The US, however, stands far apart from the international concern that excessively long prison terms, including LWOP, are violations of human dignity. In many instances, the US has declined to ratify major treaties, as in the case of the UN Convention on the Rights of the Child.4 The ongoing American refusal to comply with international punishment standards is quite problematic given the country’s simultaneous claim of being a global human rights leader. The US has openly defended the use of long—even lifelong—sentences as appropriate responses to certain noncapital (even non-violent) offences. Leaving aside the legislative endorsement of LWOP sentences in nearly every state, a clear example of the American stance in this area lies in Harmelin v Michigan (1991), in which the Supreme Court ruled that an LWOP sentence for a non-violent drug conviction did not constitute a violation of the 8th Amendment’s ‘cruel and unusual’ clause (Harmelin v Michigan 1991). The justices opined that when the US Constitution was originally framed, the issue of proportionality had not been incorporated and it therefore did not apply, except in death sentences. In Ewing v California (2003) and Lockyer v Andrade (2003), the Court deferred the task of assigning propositional punishments to the state legislatures, effectively undermining any genuine possibility for making the punishment fit the crime. It was not until the Supreme Court rulings in Graham v Florida (2010) and Miller v Alabama (2012)—both of which applied solely to juveniles—that the Court considered proportionality outside of death sentences (Steiker and Steiker 2008; 2010). VI.  IMPACT OF LIFE IMPRISONMENT ON MASS INCARCERATION AND PROSPECTS FOR REFORM

Since the late 1990s prospects for criminal justice reform have opened up for the first time in a generation. This evolving climate came about as a 4  Article 37(a) of the United Nations Convention on the Rights of the Child explicitly prohibits the imposition of ‘imprisonment without the possibility of release … for offences committed by persons below eighteen years of age’, and therefore requires a formal mechanism for considering their release.

The Impact of Life Imprisonment on Criminal Justice Reform 31 result of a number of developments. For a start, crime rates began declining in the early 1990s, following upon a surge of violence, related in large part to the crack cocaine drug markets of the late 1980s. This had contributed to a rise in homicide rates from 7.9 per 100,000 in 1984 to 9.8 per 100,000 in 1991 (Cooper and Smith 2011: 2). The reasons for the crime decline are complex and not fully understood. But it appears that key factors included the decline of crack markets and their associated violence, an improved economy in the 1990s, policing strategies in some cities, and community engagement to dissuade young people from congregating at potential troublesome locations. While large-scale incarceration is still claimed by some to have been a key factor in reducing crime, the assessment of these issues by the National Research Council concluded that ‘the magnitude of the crime reduction remains highly uncertain and the evidence suggests it was unlikely to have been large’ (National Research Council 2014: 155). As crime declined the utility of the ‘crime issue’ as a campaign platform for political leaders at all levels of government diminished as well. With public safety becoming less of a concern than other day-to-day issues there was a sharp decline in the number of campaigns focused on ‘getting tough’. Campaigns to both critique mass incarceration and to propose promising alternatives gained traction during this period. Most prominent in the critique was the growing challenge to the collection of policies comprising the war on drugs, a major contributor to the growth of incarceration in the period 1985–2000. From a variety of perspectives, drug policy came to be viewed as ineffective in controlling the supply, price, or use of illegal drugs (Belenko 1993; United States Sentencing Commission 1995). In addition, there was growing concern regarding the fiscal costs of the policy, the distortion of law enforcement priorities and the broad racial disparities that developed in the implementation of the drug war. In the late 1990s leaders at the Department of Justice advanced the concept of ‘re-entry’, a set of programmes and policies (see, for example, Travis 2000) designed to improve prospects for success for individuals returning home from prison. Similar in many respects to the longstanding, but by then discredited, concept of rehabilitation, re-entry captured the imagination of a broad range of practitioners as well as leaders across the political spectrum (Petersilia 2003; Travis 2005). Concurrently, initiatives designed to incorporate a greater array of treatment services and diversion from incarceration at sentencing gained traction as well. These included programmes such as ‘specialty courts’, focused on issues related to substance abuse and mental health. And as state governments began to experience tight fiscal constraints, it became clear to political leaders that the rising cost of corrections was impinging on vital state services (Mauer 2006). These various factors contributed to a shift in the political climate on issues of crime and punishment, to the point where calls for a substantial

32  Marc Mauer and Ashley Nellis reduction in incarceration became increasingly frequent across the p ­ olitical spectrum. Leading conservatives, such as Newt Gingrich and Grover Norquist, issued calls for a substantial reduction in incarceration, and governors of both major political parties embraced reform strategies in a number of states.5 As a result of this changing political environment, along with the reduced crime effect on prison admissions, the rate of growth in the prison system since 2000 has been substantially reduced from the previous decades. By 2014, a handful of states had even experienced prison population declines in the range of 15–25 per cent for various time frames (Mauer and ­Ghandnoosh 2014). Nevertheless, the overall picture of incarceration today is one of population stability. It is increasingly clear that achieving a substantial reduction in the number of imprisoned people will require a far more aggressive and deep strategy. In order to achieve such reductions, many advocates and policymakers have called for change in drug law enforcement and sentencing in particular. While such steps would produce a more rational allocation of public safety resources, their impact on the rate of incarceration would be more modest than assumed by many, since the contribution of drug offences to mass incarceration has declined in recent years (Gottschalk 2014). This is due in part to a moderate reduction in drug arrests (whether due to reduced use and selling of drugs, or discretionary decisions to scale back the volume of arrests by law enforcement), modification of harsh sentencing policies, such as New York’s ‘Rockefeller Drug Laws’, and the expansion of drug courts and other programmes designed to divert drug offenders into treatment rather than incarceration (Gottschalk 2014). A further limitation is due to the fact that drug offenders sentenced to prison typically serve considerably shorter sentences than persons convicted of violent offences. Consequently, life sentences are playing an increasingly significant role in determining overall rates of incarceration. As noted previously, a record one in nine imprisoned people is serving a life prison term (Nellis 2013). Since the scale of lifer reform advocacy is quite modest nationally, there are few prospects in the near future for any significant reduction in these numbers. Several factors regarding the imposition of life sentences pose additional obstacles to a decarceration strategy. First, the use of LWOP sentences is increasing as a proportion of all life sentence prisoners, rising from

5  A number of organisations and initiatives have emerged recently to address mass incarceration. Leading Republicans established the Right on Crime organisation in 2010 as a conservative approach to criminal justice reform in the states. In 2015, #cut50 was created by liberal activist Van Jones, who has frequently partnered with leading conservative Newt Gingrich; it aims to halve the prison population by 2025. Finally, the Coalition for Public Safety launched in 2015 with the goal of advancing bipartisan legislative reforms that will reduce America’s over-reliance on incarceration.

The Impact of Life Imprisonment on Criminal Justice Reform 33 26 per cent in 2003 to 29 per cent in 2008. As of 2012, 30 per cent of the 159,520 people serving life sentences were not eligible for parole, representing a 22 per cent rise since 2008 (Nellis 2013: 1). Since by definition this group of offenders will never leave prison, except under exceptional circumstances, their numbers are likely to continue to be increasingly significant. Secondly, even among the persons sentenced to life with the possibility of parole, release from prison has become increasingly less likely, or at the very least, longer in coming. In decades past many state sentencing systems allowed for parole consideration of lifers after 15 or 20 years in prison. While those statutes are largely still in place, discretionary decisions by governors and parole board officials in states such as Michigan and Louisiana have now imposed a ‘life means life’ interpretation of the sentence (People v Edward Hill 2006).6 In addition to the impact on prison populations, these decisions raise profound questions about redemption, justice and fairness. At the time these individuals were sentenced to prison, their sentencing judges were clearly aware of the prevailing statutes in their respective states and were therefore comfortable imposing a sentence that would allow for parole release after a reasonable period if parole officials viewed the risk and behavioural issues favourably. Political initiatives of recent decades have expanded the breadth of life sentences as well. In the 1990s about half of all states adopted some type of ‘three strikes and you’re out’ law, typically calling for a life sentence for a third conviction of a violent offence (Austin et al 2000). The version of the law adopted in California was by far the most expansive. Under its provisions the first two strikes were required to be serious or violent offences as defined by the statute, but the third strike could be any state felony. As a result, about 4,000 individuals were sentenced to 25-to-life prison terms for a non-violent offence (Driscoll 2012). Among the most notable were two men who brought a challenge to the law at the US Supreme Court. Gary Ewing was sentenced to 25-to-life for stealing three golf clubs from a sporting goods store and Leandro Andrade was sentenced to 50-to-life for stealing $153 worth of videotapes. Their argument that the sentences constituted ‘cruel and unusual’ punishment was rejected by the Court, which deferred to the authority of the legislature to determine appropriate sentencing policies. Following public outcry about many of these sentences, the third-strike provision was amended by California state voters through the enactment of the Three Strikes Reform Act of 2012 (commonly referred to as Proposition 36), and now requires that the final strike also be for a serious or violent offence (Three Strikes Project 2014: 1).

6 See People v Edward Hill (2006), in which the Michigan Supreme Court ruled that the parole board’s implementation of a ‘life means life’ policy, beginning in 1992, did not violate the federal ex post facto clause by increasing the petitioner’s sentence.

34  Marc Mauer and Ashley Nellis Harsh mandatory penalties adopted by Congress in the 1980s as an outgrowth of the country’s notorious ‘war on drugs’ have also extended the net of offenders subject to LWOP terms. A recent study identified 3,278 individuals serving such terms for a non-violent offence in the federal system and nine states (American Civil Liberties Union 2013: 2). An increasingly significant development, as well, is the ostensible substitution of LWOP sentences as an ‘alternative’ to the death penalty. In part this is due to litigators relying on the availability of the LWOP sentence as a critical tool used in jury trials and plea negotiations to avoid a death sentence (Henry 2012). But other developments suggest a more substantial shift in sentencing outcomes. In states that have abolished the death penalty in recent years—seven in the past decade7—this has generally resulted in persons on death row being resentenced to LWOP as well as LWOP becoming the standard sentence for crimes that previously would have resulted in a death sentence. But in practice this shift has also expanded the pool of defendants pulled into LWOP sentences. Legal scholars Carol Steiker and Jordan Steiker observe that the ‘arguments, policies, and law relating to the death penalty have had a complicated, multidirectional spillover [effect] in the context of incarceration, and vice versa’ (Steiker and Steiker 2014: 190). Indeed, Alabama, Illinois and Louisiana all enacted LWOP statutes during the national moratorium on the death penalty between 1972 and 1976. The use of LWOP as an alternative to the death penalty is seen clearly through the annual-level data from a number of states. In New Jersey, Texas, Indiana, Mississippi and South Carolina, for example, declines in the death row population coincide with sharp rises in the LWOP population. It is also inconceivable that the current population of 49,000 individuals serving such sentences would otherwise be on death row, so in the absence of LWOP sentences it logically follows that the vast majority of these individuals would be serving life sentences with the possibility of parole. Perhaps more troubling is that in many cases, an LWOP sentence is being used as an alternative to a sentence of life with the possibility of parole, and not as an alternative to the death penalty. This trend is supported by the rise in offences eligible for an LWOP sentence in the modern death penalty era that go far beyond its use in capital crimes. Consider the fact that 46.2 per cent of the LWOP prisoners in the state of Washington have been convicted of a non-homicide offence (Nellis 2013: 16). It is also seen in the fact that the rise in LWOP sentences has significantly outpaced the decline in the death penalty as well as the rise in life sentences with the possibility of parole.

7 Connecticut, Illinois, Maryland, Nebraska, New Jersey, New Mexico and New York (Death Penalty Information Center 2015).

The Impact of Life Imprisonment on Criminal Justice Reform 35 VII.  CHALLENGES FOR THE JUSTICE REFORM MOVEMENT

While the large-scale use of life imprisonment in the US is clearly an outgrowth of the punitive developments that have produced mass incarceration, at the present moment there is also an increasing challenge to policy change for life sentences brought about by the mass incarceration reform movement itself. This emerges both from campaigns and policy initiatives designed to reduce the scale of incarceration and, in a more direct way, from the movement to abolish the death penalty. As the criminal justice reform movement has gained traction in recent years, a key strategy has been to reduce prison admissions and/or length of sentence for lower-level offenders, and particularly for drug offences. This movement has been premised on an inarguable rationale: incarcerating such offenders has not been shown to produce any significant deterrent or incapacitating effects, it fails to address the underlying factors contributing to these persons’ engagement in crime, and it is very costly to taxpayers. Sometimes this rationale is expanded to incorporate a strategy to target lower-level offenders in diversion programmes in order to build up a track record of success, with the idea of expanding to more serious cases later on. Unfortunately, the experience in this area suggests that such a development is rarely the case. Instead, policies, practices and cultural assumptions become focused on the initial programme client profile, and the idea of expanding it becomes increasingly dim. This ‘widening of the net’ of social control has been recognised since the early years of mass incarceration and largely continues today (Austin and Krisberg 1981). Not only do programme initiatives and reform campaign rhetoric emphasise the goal of diverting non-violent offenders from imprisonment, but in many cases their spokespersons actively campaign to demonise more serious offenders as unworthy of consideration for sentencing reform. To take one example, consider the 2012 campaign in California to scale back that state’s notorious ‘three strikes and you’re out’ law through Proposition 36. As noted above, the goal of the campaign was to require that all three strikes necessary to impose a sentence of 25 years-to-life should be serious or violent offences (Three Strikes Project 2014: 1). The strategy employed by the reform campaign centred on making a sharp distinction between violent and other offenders. Thus, in launching the campaign a spokesperson stated that ‘what the voters wanted in the first place was to make sure the truly most violent monsters are locked up forever’ (Lagos 2011, emphasis added). Thus, in trying to reduce the use of life imprisonment for some offenders, the campaign unnecessarily demonised thousands of others. The ballot campaign was in fact successful, gaining 69 per cent public support for the reform, which as of April 2014 had resulted in over 1,500 individuals being resentenced to shorter prison terms (Three Strikes Project

36  Marc Mauer and Ashley Nellis 2014: 1). But the long-term impact on not only lifers, but the prison population generally, may prove to be quite troubling. By lending support to public perception that makes a sharp distinction between ‘deserving’ prisoners and the ‘truly most violent monsters’, the advocates of limited reform are essentially calling for cutting off any exploration of what justice might mean in cases of people who have committed serious offences. What might such an exploration look like? One could begin with assessing the backgrounds of the individuals who have ended up serving life ­sentences. What was their home and community life like? To what extent did they experience abuse, witness violence in the home or community, experience educational failure, and/or suffer from mental or physical disabilities? None of these issues would excuse or condone the harm they caused to others, but they would help us to understand something about the factors contributing to violent behaviour and how we might prevent and respond to it. While there are no national survey data that delve into the backgrounds of the individuals serving life sentences, a 2012 survey by The Sentencing Project provides a close examination of most of the individuals serving ­sentences of juvenile LWOP. About 70 per cent of the more than 2,500 such people serving these prison terms responded to the survey (Nellis 2012). The research findings are quite disturbing, but illuminate a broad range of factors that shed light on these crimes. Juvenile lifers reported experiencing high levels of violence as children, with 79 per cent witnessing violence in their homes and more than half witnessing weekly violence in their neighbourhoods (Nellis 2012: 10–11). They also suffered high rates of abuse: 21 per cent of juvenile lifers, and 77 per cent of girls, reported histories of sexual abuse (Nellis 2012: 10). Many had experienced significant social and economic disadvantage. A third had been raised in public housing, and 18 per cent had not been living with a close adult relative at the time of their incarceration (Nellis 2012: 9). These sobering patterns are now a vital part of discussions on extreme sentencing for youth, as articulated by Justice Kagan in Miller v Alabama (2012).8 Two other areas of reform advocacy pose particular challenges as well for consideration of reform on life imprisonment. The first arises out of the successful litigation in the US Supreme Court regarding juveniles serving LWOP sentences. Much of the argument for these campaigns focused, appropriately, on the fact that ‘children are different’. Emerging research on brain development

8  The so-called ‘Kagan factors’ include not only the child’s age at the time of the offence but appreciation of adolescents’ maturity level, tendencies toward impetuosity and common failure to evaluate risks that go with that age. In addition, the court should consider the child’s home and family environment; the circumstances of the offence, including the role taken and the pressure exerted by others; the child’s lack of sophistication relative to an adult; and the possibility for reform.

The Impact of Life Imprisonment on Criminal Justice Reform 37 has strengthened the understanding that youth are not fully formed in their capacity to appreciate the consequences of their actions or to control impulsivity until their mid-20s. In its rulings on the cases the Court noted that Juveniles are more capable of change than are adults, and their actions are less likely to be evidence of ‘irretrievably depraved character’ than are the actions of adults … from a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s ­character deficiencies will be reformed. (Graham v Florida 2010: para 17)

The challenge this poses for broader reform is that if ‘children are different’ then what does this say about adults, who are presumably more mature, less impulsive and more culpable for their actions? Rather than assume that adults are therefore ‘deserving’ of their punishments, we could instead use the framework of the argument for juveniles and extend that to consideration of adult behaviour. That is, what would an individualised approach to sentencing tell us about considerations for length of sentence for adults who have committed serious acts? This would involve a consideration of issues of substance abuse and mental health for a start, both of which are all too common among this group of offenders. It would also involve realistic considerations of public safety concerns, such as an assessment of the degree to which risk declines with age.9 The second reform area that poses challenges to lifer reform is the troubled issue of the death penalty. As virtually the only industrialised nation that maintains capital punishment,10 the US maintains a death row population of more than 3,000 people. Over the past decade, though, support for the death penalty has begun to decline. This shift in the political climate, along with high-profile cases of innocent persons sentenced to death freed from prison after serving 20 years or more, has resulted in declining executions overall. From a recent high of 98 in 1999, the figure declined to 28 by the end of 2015 (Death Penalty Information Center 2015: 1). As abolitionist campaigns have attacked the death penalty in state legislatures, they have done so on issues of morality, but also by appeals to concerns about fiscal costs and public safety. Typically, this has included a call for the replacement of the death penalty with LWOP sentences, both for those currently serving capital sentences and for future cases that would have otherwise been sentenced to death. On the one hand such a strategy is perfectly understandable. The death penalty has been a fact of life in most states for many decades, and

9  A considerable amount research has been devoted to the study of the relationship between age and engagement in crime. See, for example, Nagin, Farrington and Moffitt (1995): Petras, Nieuwbeerta and Piquero (2010); Sampson and Laub (2003); and Steffensmeier et al (1989). 10  Note that Japan does as well, but the annual number of executions is generally in the single digits (Hood and Hoyle 2015).

38  Marc Mauer and Ashley Nellis c­ ampaigning for its abolition is a major undertaking. Given that people on death row have been convicted of capital murder, it is not surprising that both the public and lawmakers would be focused on public safety concerns. Therefore, by promoting LWOP as an alternative the reform strategy has been to try to remove any doubt that the incarcerated person would ever be freed to kill again. Two concerns arise regarding this strategy. First, by either creating a new sentence of LWOP or advocating for its increased use, abolitionists may be contributing to an enhanced use of such sentences well beyond the numbers that would be generated if it were only an ‘alternative’ to the death penalty. In New Jersey, for example, the repeal of the death penalty was accompanied by a statutory change that mandated ‘imposition of life without the possibility of parole in countless cases in which the death penalty would never otherwise be imposed’ (New Jersey Death Penalty Study Commission 2007: 89). In contrast to the structure of the death penalty, which requires weighing aggravating and mitigating factors, a mandatory penalty of LWOP not only replaces death sentences, but also replaces sentences that would have allowed for the possibility of parole. Further, as was the case in the California ‘three strikes’ repeal campaign, the identification of convicted offenders solely by their offence of conviction risks cutting off any consideration of individualised assessment of their life circumstances, capacity for change or interventions in prison that could aid in such transformation. While juveniles may be uniquely capable of change, so, too, are adults able to mature and transform their lives. The 25-year-old convicted of murder in many cases will be a very different person by the age of 40. We count ourselves as dedicated members of the abolitionist community, and therefore raise these questions in a spirit of challenge both to ourselves and our colleagues. In the present political climate it is no doubt the case that a failure to support LWOP as an alternative to the death penalty in some cases will doom prospects for repeal. But if we hope to reach a point where this is not necessarily the case, we will need to explore strategies for communications and policy advocacy to advance an alternative vision. REFERENCES

Abramsky, S (2006) ‘The Dope Dealer Who Got 55 Years’ The ­Progressive, May 31. Available online at http://www.progressive.org/ news/2006/05/3455/sasha-abramsky-dope-dealer-who-got-55-years (accessed 12 January 2016). Alexander, M (2012) The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York, The New Press).

The Impact of Life Imprisonment on Criminal Justice Reform 39 American Civil Liberties Union (2013) A Living Death: Life without Parole for Nonviolent Offenses (New York, ACLU). Appleton, C (2014) ‘Lone Wolf Terrorism in Norway’ The International Journal of Human Rights, 18(2), 127–42. —— (2015) ‘Life without Parole’ Oxford Handbooks Online (New York, Oxford University Press). Austin, J, Clark, J, Hardyman, P and Henry, DA (2000) ‘Three Strikes and You’re Out’ The Implementation and Impact of Strike Laws ­(Washington, DC: National Institute of Justice). Austin, J and Krisberg, B (1981) ‘Wider, Stronger, and Different Nets: The Dialectics of Criminal Justice Reform’ Journal of Research in Crime and Delinquency, 18(1), 165–96. Belenko, S (1993) Crack and the Evolution of Anti-Drug Policy (CT: Greenwood Press). Chiricos, T, Welch, K and Gertz, M (2004) ‘Racial Typification of Crime and Support for Punitive Measures’ Criminology, 42, 358–90. Clear, T and Frost, N (2013) The Punishment Imperative: The Rise and Failure of Mass Incarceration in America (New York, New York ­University Press). Cooper, A and Smith, EL (2011) Homicide Trends in the United States, 1980–2008 (Washington, DC, US Bureau of Justice Statistics). Currier, Cora (2013) ‘President Obama Tells Clarence Aaron He Can Finally Go Home’ ProPublica. Available online at http://www.propublica. org/article/president-obama-tells-clarence-aaron-he-can-finally-go-home (accessed 16 January 2016). Death Penalty Information Center (2015) ‘Executions by Year since 1976’. Available online at http://www.deathpenaltyinfo.org/documents/ FactSheet.pdf (accessed 16 January 2016). Doob, A and Webster, C (2014) ‘Creating the Will to Change: The Challenges of Mass Incarceration’ Criminology and Public Policy, 13(4): 547–99. Driscoll, S (2012) ‘Three Strikes Project: Beyond Individual Client Representation’ Stanford Lawyer, 86:1. Available at https://law.stanford.edu/ stanford-lawyer/articles/three-strikes-project-%E2%80%A8beyondindividual-client-%E2%80%A8representation%E2%80%A9/ (accessed 12 January 2016). Garland, D (ed) (2001) Mass Imprisonment: Social Causes and Consequences (London, Sage). Gottschalk, M (2014) Caught: The Prison State and the Lockdown of American Politics (New Jersey, Princeton University Press). Henry, J (2012) ‘Death-in-Prison Sentences: Overutilized and Underscrutinized’ in CJ Ogletree and A Sarat (eds) Life without Parole: American’s New Death Penalty? (New York, New York University Press) 66–95.

40  Marc Mauer and Ashley Nellis Hood, R and Hoyle C (2015) The Death Penalty: A Worldwide Perspective (Oxford, Oxford University Press). Lagos, M (2011) ‘Three Strikes: Proposed Law Tries to Restore Intent’ San Francisco Chronicle. Available online at http://www.sfgate.com/­politics/ article/3-strikes-Proposed-law-tries-to-restore-intent-2296566.php (accessed 16 January 2016). Lynch, JP and Pridemore WA (2011) ‘Crime in International Perspective’ in JQ Wilson and J Petersilia (eds), Crime and Public Policy (Oxford, Oxford University Press). Mauer, M (2006) Race to Incarcerate (New York, The New Press). Mauer, M and Ghandnoosh, N (2014) Fewer Prisoners, Less Crime: A Tale of Three States (Washington, DC: The Sentencing Project). Mauer, M, King, R and Young, M (2004) The Meaning of ‘Life’: Long Prison Sentences in Context (Washington, DC, The Sentencing Project). Nagin, DS, Farrington, DP and Moffitt, TE (1995) ‘Life Course Trajectories of Different Types of Offenders’ Criminology, 33(1): 111–39. National Research Council (2014) The Growth of Incarceration in the United States: Exploring Causes and Consequences (Washington, DC, The National Academies Press). Nellis, A (2012) The Lives of Juvenile Lifers: Findings From a National Survey (Washington, DC, The Sentencing Project). —— (2013) Life Goes On: The Historic Rise in Life Sentences in America (Washington, DC, The Sentencing Project). Nellis, A and King, R (2009) No Exit: The Expanding Use of Life Sentences in America (Washington, D.C., The Sentencing Project). New Jersey Death Penalty Study Commission (2007) New Jersey Death Penalty Study Commission Report. Available online at http://www.njleg. state.nj.us/committees/dpsc_final.pdf (accessed 16 January 2016). Petersilia, J (2003) When Prisoners Come Home: Parole and Prisoner ­Reentry (Oxford, Oxford University Press). Petras, H, Nieuwbeerta, P and Piquero, A (2010) ‘Participation and ­Frequency During Criminal Careers Across the Life Span’ Criminology, 48(2): 607–37. Sampson, R and Laub JH (2003) ‘Life-Course Desisters? Trajectories of Crime Among Delinquent Boys Followed to Age 70’ Criminology, 41(3): 301–40. Sarat, A and Martschukat, J (eds) (2011), Is the Death Penalty Dying? (Cambridge, Cambridge University Press). Semukhina, O and Demidov, NN (2011), ‘Perceived Group Threat and Punitive Attitudes in Russia and the United States’ British Journal of Criminology, 51(6), 937–59. Steffensmeier, DJ, Allan, EA, Harer MD and Streifel, C (1989) ‘Age and the Distribution of Crime’ American Journal of Sociology, 94(4), 803–31.

The Impact of Life Imprisonment on Criminal Justice Reform 41 Steiker, J and Steiker, C (2008) ‘Opening a Window or Building a Wall? The Effect of Eighth Amendment Death Penalty Law and Advocacy on Criminal Justice Reform More Broadly’ Journal of Constitutional Law, 11, 155–205. Steiker, C and Steiker, J (2010) ‘Graham Lets the Sun Shine In: The Supreme Court Opens a Window between Two Formerly Walled Off Approaches to Eighth Amendment Proportionality Challenges’ Federal Sentencing Reporter, 23(1), 79–86. —— (2014) ‘The Death Penalty and Mass Incarceration: Convergences and Divergences’ American Journal of Criminal Justice, 41(2), 189–207. Sutton, JR (2000) ‘Imprisonment and Social Classification in Five ­Common-Law Democracies, 1955–1985’ American Journal of Sociology, 106, 350–86. Three Strikes Project (2014) Proposition 36 Progress Report: Over 1,500 Prisoners Released, Historically Low Recidivism Rate (Stanford, Stanford Law School). Available online at http://law.stanford.edu/wp-content/ uploads/sites/default/files/child-page/595365/doc/slspublic/ThreeStrikesReport.pdf (accessed 16 January 2016). Tonry, M (ed) (2013) Crime and Justice: Prosecutors and Politics, A ­Comparative Perspective (Chicago, University of Chicago Press). Travis, J (2000) But They All Come Back: Rethinking Prisoner Reentry (Washington, DC, Department of Justice). —— (2005) But They All Come Back: Facing the Challenges of Prisoner Reentry (Washington, DC, Urban Institute). United States Sentencing Commission (1995) Report on Cocaine and Federal Sentencing Policy (Washington, DC, USSC). US Department of Justice (2015) Clemency Statistics (Washington, DC, Department of Justice). Available online at http://www.justice.gov/­pardon/ clemency-statistics (accessed 15 January 2016). Van Zyl Smit, D (2010) ‘Outlawing Irreducible Life Sentences: Europe on the Brink?’ Federal Sentencing Reporter, 23(1), 39–48. Van Zyl Smit, D and Ashworth, A (2004) ‘Disproportionate Sentences as Human Rights Violations’ The Modern Law Review, 67(4), 541–60. Walmsley, R (2015) World Prison Brief. (London, Institute for Criminal Policy Research). Available online http://www.prisonstudies.org/worldprison-brief (accessed 16 January 2016). Western, B (2006) Punishment and Inequality in America (New York, Russell Sage Foundation). Young, W and Brown, M (1993) ‘Cross-National Comparisons of ­Imprisonment’ Crime and Justice: A Review of Research, 7, 1–49.

42  Marc Mauer and Ashley Nellis TABLE OF CASES

Domestic Cases Ewing v California 538 US 11 (2003) Graham v Florida 560 US 48 (2010) Harmelin v Michigan 501 US 957 (1991) Lockyer v Andrade 538 US 63 (2003) Miller v Alabama 567 US 2455 (2012) People v Edward Hill 474 Mich 1069 (Mich 2006) Cases of the European Court of Human Rights Vinter and Others v United Kingdom App nos 66069/09, 130/10 and 3896/10 (9 July 2013)

2 Life Imprisonment in Latin America BEATRIZ LÓPEZ LORCA*

I. INTRODUCTION

I

N LATIN AMERICA, life imprisonment exists in only six countries: Argentina, Chile, Cuba, Honduras, Mexico1 and Peru. Considering that this geographic and linguistic area is made up of 19 countries,2 this proportion seems to suggest that Latin American legal systems are characterised by low levels of punitiveness, especially when compared with other geographic areas in which life sentences are widely used—for instance Europe, or the Commonwealth countries. The fact that Latin American states have been ‘in the vanguard’ of the death penalty abolitionist movement (Hood and Hoyle 2015: 70) seems to support this idea. However, if Latin American legal systems are analysed more closely, it can be seen that there is actually an intensive use of prison sentences in general, and of long prison sentences in particular. Moreover, in many jurisdictions, the upper limits of prison sentences and the maximum terms of imprisonment can be surprisingly high, implying the existence of de facto life sentences. The combination of these factors results in harsh penal systems. This harshness in turn has a direct impact on the rates of imprisonment in the region and contributes to the generally high levels of overcrowding in Latin American prisons ­(Carranza 2009 2006). In this region, life imprisonment has not generally been introduced as a substitute for the death penalty. Of the six countries which have introduced life imprisonment, Cuba retained the death penalty which was in place at the time.3 Only Chile, where life imprisonment had been in force since 1874, replaced the death penalty with an aggravated sentence of

*  The author gratefully acknowledges support provided by the Spanish Ministry of ­Economy within the I+D+I national research project with reference DER2013-41655-R. 1  In Mexico life imprisonment is not in force at federal level, but at state level. 2  Only Spanish speaking countries are considered. Brazil is excluded as it is dealt with more fully in another chapter of this book. 3  Cuba may be regarded as a de facto abolitionist jurisdiction on the grounds that no executions have been carried out for the last 10 years. In 2009, the government commuted most

44  Beatriz López Lorca life imprisonment (presidio perpetuo calificado) in 2001. In the main, the introduction of life imprisonment as a penalty in this region has been a twentieth century phenomenon. Except in Argentina and Chile, where a sentence of life imprisonment had already been introduced by the first criminal codes of 1886 and 1874 respectively, for Latin American countries life imprisonment was only brought in from 1990 onwards: Peru in 1992 (Act no 25.475); Cuba in 1999 (Act no 87); and Honduras in 1997 (Decree no 46). In Mexico, life imprisonment was introduced after the Supreme Court (P./J. 1/2006) stated in 2006 for the first time that a sentence for life was compatible with the Mexican Constitution. The Mexican States of Puebla (Decree of 31 December 2008), Quintana Roo (Decree no 284 of 2010) and Veracruz (Decree of 15 August 2008), introduced life imprisonment in 2008, Chihuahua did so in 2010 (Decree no 15) and, finally, the State of Mexico introduced life imprisonment in 2011 (Decree no 397), after amending its Constitution (Decree no 391 of 2011).4 Except for Argentina and Chile, which already had life imprisonment as a sanction, the introduction of life imprisonment in Latin American countries was in response to an upsurge in serious crime or viewed as a means to quell political instability. Although Cuba and Peru had the death penalty in their arsenal of penalties, in Cuba life imprisonment was introduced in order to fight against the growing problem of human trafficking, and in Peru it was introduced as a means to fight terrorism and political instability during Fujimori’s presidency, although the scope of life imprisonment was subsequently expanded. In both Mexico and Honduras, life imprisonment was the state response to the most serious offences and to the high rates

death sentences to sentences of life imprisonment. However, three prisoners remained on death row although their death sentences were also commuted in 2010. There has still not been an official moratorium on executions (see Misión Permanente de Cuba ante la Oficina de las Naciones Unidas en Ginebra y los Organismos Internacionales con sede en Suiza 2012). 4 According to the legality principle, life imprisonment is contained in the so-called system of penalties (sistema de penas) of all jurisdictions: Arts 5 and 6 of the Criminal Code of Argentina 1984; Art 21 of the Criminal Code of Chile 1874: Art 30.1 of the Criminal Code of Cuba 1987, Art 38 of the Criminal Code of Honduras 1983; Art 29 of the Criminal Code of Chihuahua 2006; Art 22 of the Criminal Code of the State of Mexico 2000; Art 37 of the Criminal Code of Puebla 2012; Arts 21 and 22 of the Criminal Code of Quintana Roo 1991; Art 45 of the Criminal Code of Veracruz 2003; and Art 29 of the Criminal Code of Peru 1991. The legality principle is recognised in national constitutions (Art 18 of the Argentinian Constitution 1994; Art 19.3 of the Chilean Constitution 2005; Art 59 of the Cuban Constitution 2003; Art 95 of the Constitution of Honduras 1982; Art 14 of the federal Mexican Constitution 1982; and Art 2.24.e of the Peruvian Constitution 1979) as well as in Art 9 of the American Convention on Human Rights (ACHR). It implies that a life sentence can only be imposed when specifically provided for (see, for example, Art 41 of the Criminal Code of Puebla, Art 22 of the Criminal Code of Quintana Roo and Art 48 of the Criminal Code of Veracruz 2003).

Life Imprisonment in Latin America 45 of murder, kidnapping and extortion in those countries (Carranza 2012). Both Honduras and Mexico had abolished capital punishment in 1856 and 2005, respectively, and thus, in accordance with Article 4 of the American Convention on Human Rights (ACHR) and the Protocol to the American Convention on Human Rights to Abolish the Death Penalty, neither state could reinstate the death penalty. Thus, life imprisonment was regarded as the only penalty left that would protect society sufficiently and satisfy the demands of retribution and deterrence. II.  THE SCOPE OF LIFE IMPRISONMENT

In the countries under study there are 24 types of offences for which a life sentence can be imposed. This is a significant number of offences, particularly when one takes into consideration that life imprisonment is only in force in five national jurisdictions and in five state jurisdictions of Mexico. Table 2.1:  Offences Providing for a Life Sentence Offences

Argentina Chile Cuba Honduras México Peru Offences against life

Aggravated homicide

 (2, 3)

Homicide of certain family members

 (3)



Femicide

 (3)

Killing a public prosecutor



Aggravated attempts on the life of a minister of religion



Murder





 (1)





 (6)

Offences against freedom Aggravated illegal detention Aggravated hostage taking

 (5)

 

Kidnapping Aggravated kidnapping Child abduction

 





 (4, 6)



 (continued)

46  Beatriz López Lorca Table 2.1:  (Continued) Offences

Argentina Chile Cuba Honduras México Peru Sexual offences

Aggravated rape





 (1)

Paedophilia

 (1)

Aggravated grooming

 (1)

 (3, 5)



Offences against human dignity Aggravated torture

 (3)

 Property Offences

Aggravated extortion Aggravated robbery



 (1)

 (2, 3)



 (3)



Economic offences Facilitation of illegal border crossing



Offences against the security of the state and public order Aggravated adulteration of substances intended for human consumption

 (1)

Aggravated drug trafficking

 (1)

Treason



Aggravated treason





 (1)

Attempts on the life of the head of the state or the head of the government



Attempts on the life of any head of state administration



Attacking any government member or any member of a political party

 (1)

Usurpation of political power

 (1)

Violation of airspace or land

 (1)

Espionage

 (1) (continued)

Life Imprisonment in Latin America 47 Table 2.1:  (Continued) Offences

Argentina Chile Cuba Honduras México Peru

Rebellion

 (1)

Sedition

 (1)

Aggravated sabotage

 (1)

Aggravated setting fire to any means of transport



Terrorism

 (1)

Aggravated theft of firearms

 

International crimes Genocide

 (1)

Apartheid

 (1)

Being a mercenary

 (1)

Maritime piracy



 (1)

(1) Capital offences. Life imprisonment may apply in terms of Article 30.3 of the Criminal Code. (2) Chihuahua. (3)  México State. (4) Puebla. (5)  Quintana Roo. (6) Veracruz.

An analysis of Table 2.1 shows that the range of offences that are punishable by a life sentence can be grouped into the following categories: —— —— —— —— —— —— —— ——

offences against life; offences against freedom; sexual offences; offences against human dignity; property offences; economic offences; offences against the security of the state and public order; and international crimes.

This range of offences may be classified into two main groups. On the one hand, life imprisonment would apply to protect individual interests (bienes jurídicos personalísimos), namely, life, freedom, sexual freedom and ­property. And, on the other, life imprisonment would apply to acts against the security of the state and public order, that is, the so-called collective interests (bienes jurídicos colectivos) (Mir Puig 2008).

48  Beatriz López Lorca Table 2.2 presents the scope of life imprisonment in Latin America, at a glance. Table 2.2:  The Scope of Life Imprisonment Offences*

Argentina Chile Cuba Honduras Mexico Peru

Homicide and murder





Offences against Freedom





Sexual offences





Torture



Property offences







Offences against Security of the State





 (1)



 (1)

Offences against Public Order Economic offences

 (1)



 (2)





 (4)



 (3)



 (1)

 (5)  (6)



 



*  The various offences relevant to each category of offence in this table are listed in Table 1. (1) Capital offences. Life imprisonment may apply in terms of article 30.3 of the Criminal Code. (2)  Chihuahua, México State and Veracruz. (3)  México State and Quintana Roo. (4)  México State, Puebla, Quintana Roo and Veracruz. (5)  México State. (6)  Chihuahua and México State.

The scope of life imprisonment in Latin America relates to the most serious offences, with the sole exception of Cuba. While life imprisonment is the ultimate penalty in Argentina, Chile, Honduras, Mexico and Peru,5 Cuba retains the death penalty and thus, capital punishment is the most punitive sentence in this jurisdiction, so that the scope of life imprisonment would not cover the most serious crimes. As stated above, life imprisonment is the automatic substitute for the death penalty (Article 30.3 of the Cuban Criminal Code). The broadness of the scope of life imprisonment in Latin America shows that defining the most serious offences is as problematic as establishing the concept of the most serious crimes in relation to the death penalty. On the other hand, the list of offences (see Table 2.2) shows that the scope of life imprisonment in Latin America resembles the scope of the death ­penalty in 5  Except for the death penalty in military criminal law in Chile (Art 216 of the Military Justice Code 1944 and Peru (Art 17 of the Police Military Justice Code 2006).

Life Imprisonment in Latin America 49 retentionist countries, despite the fact that the introduction of life imprisonment in the region is not the result of the replacement of the death penalty—with the sole exception of Chile.6 Importantly, there is not one single offence—not even aggravated murder or homicide—punishable by a life sentence in all jurisdictions in this region. There are only three offences for which more than three jurisdictions apply life imprisonment (murder, aggravated rape and aggravated kidnapping). By contrast, there is a significant number of offences for which only one or two jurisdictions impose life imprisonment. On the other hand, life imprisonment usually applies to aggravated offences although the types of aggravating circumstances differ strongly from one jurisdiction to another, even when considering one single offence. III.  MODELS OF LIFE IMPRISONMENT

Life imprisonment is used worldwide, but, unlike the death penalty, a ­sentence for life can mean many different things (Van Zyl Smit 2002). This assertion is also true in Latin America. Despite life imprisonment being in force in six countries, there is no single legal standard or model of life imprisonment (see Tables 2.3 and 2.4). It is therefore necessary to establish the types of life sentence that can be imposed in this region. A. Mandatory or Discretionary, Review Mechanisms and De Facto Life Imprisonment —— In Argentina, life imprisonment is mandatory for all offences where it is available except for treason, and can only be reviewed by a parole process in certain cases. —— In Chile, where there are three types of penalties involving imprisonment for life,7 it is discretionary except for the offence of inciting foreign countries to declare war on Chile, and can always be reviewed by a parole process. —— In Cuba there are only two offences (aggravated robbery and facilitating illegal border crossing) for which a life sentence is provided, and in these cases it is not mandatory. By contrast, it is mandatory when 6  For an account of the range of capital crimes in all retentionist countries, see Hood and Hoyle (2015: 156–69). 7  According to Art 21 of the Criminal Code, the three penalties involving imprisonment for life are presidio perpetuo calificado, presidio perpetuo and reclusion perpetua. The presidio perpetuo calificado, the most punitive life sentence, was introduced in 2001 (Act 19.734) to replace the death penalty. However, this Act did not abolish the death penalty in the Code of Military Justice, which still applies to various crimes committed in times of war—for example, treason (Arts 244–48) or espionage (Art 252).

50  Beatriz López Lorca replacing the death penalty (Article 30.2 of the Criminal Code).8 Life imprisonment cannot be reviewed by a parole process, except in ‘exceptional circumstances’. —— In Honduras, life imprisonment was introduced in 1997 after amending Article 97 of the Constitution, which outlawed prison sentences longer than 20 or 30 years in cases of cumulative sentences.9 It is discretionary and cannot be reviewed by a parole process. —— In Peru, life imprisonment is mandatory for all offences where it is available with the sole exception of aggravated rape and certain terrorist offences.10 It can be reviewed by a parole process, except in cases of terrorism and certain other serious offences. Among Latin American countries providing for life imprisonment, Mexico is a specific case, inasmuch as this penalty is not in force at federal level but at state level. Out of 32 states, life imprisonment only exists in Chihuahua, the State of Mexico, Puebla, Quintana Roo and Veracruz. —— In Chihuahua, life imprisonment is only provided for aggravated homicide and aggravated extortion, and it is mandatory in both cases. It cannot be reviewed by a parole process. —— In the State of Mexico, life imprisonment applies in cases of certain aggravated offences (homicide, extortion, rape, robbery or torture). It is discretionary in all cases and cannot be reviewed by a parole process except for aggravated torture. —— In Puebla, life imprisonment is discretionary and cannot be reviewed by a parole process. —— In Quintana Roo, life imprisonment is provided for aggravated illegal detentions and aggravated rape. It is discretionary in both cases and cannot be reviewed by a parole process. —— In Veracruz, life imprisonment applies to aggravated homicide and aggravated kidnapping. It is discretionary and cannot be reviewed by a parole process. Other states have recently proposed to introduce life sentences for punishing particularly serious offences, so the use of life imprisonment may intensify in this country in the future,11 given that the Mexican Supreme Court has ruled life sentences constitutional (see section IV below). 8  In Cuba, the death penalty has an exceptional character and is only provided for the ‘most serious crimes’ (Art 29 of the Criminal Code). However, the scope of the death penalty in Cuba includes a wide range of offences. 9  See Decree 46/1997. 10  According to the Decree Law no 25.745 of 1992, prisoners convicted for terrorism would serve their sentence in maximum-security prisons, in strict isolation over the first year. It also excluded the granting of any mechanism for early release. This Decree was found to be unconstitutional in 2003 and is no longer in force. 11  The State of Jalisco is currently discussing the introduction of life imprisonment to punish aggravated homicides and femicide. See http://mexico.cnn.com/nacional/2013/10/07/

Life Imprisonment in Latin America 51 However, if de facto life sentences are taken into consideration, that is, lengthy determinate sentences that would exceed a person’s life expectancy, the scope of life imprisonment in Mexico would expand significantly. Specifically, de facto life imprisonment is in force in 24 Mexican states in which the maximum term of imprisonment runs from 50 years (Baja California, Campeche, Hidalgo, Jalisco, Querétaro, Tabasco, Tamaulipas, Yucatán, Zacatecas), 60 years (Colima, Guerrero, Nayarit, Nuevo León, Sonora), 70 years (Baja California Sur, Distrito Federal, Durango, San Luis Potosí, Sinaloa, Tlaxcala), 80 years (Morelos) up to 100 and 105 years (Chiapas and Oaxaca). There are even two states (Aguascalientes, Coahuila) where the Criminal Code does not establish a maximum fixed term of imprisonment. In some Mexican states, the maximum term of imprisonment can be even higher in cases of cumulative sentences (for instance, Jalisco). On the other hand, at federal level, the General Law to Prevent and Punish Crimes of Kidnapping of 2010 clearly introduced de facto life sentences. For instance, it establishes a prison term up to 80 years for anyone convicted of kidnapping, up to 90 or 100 years in cases of aggravated kidnapping, and up to 140 years if the kidnapping results in the victim’s death. Table 2.3:  Models of Life Imprisonment: Mandatory or Discretionary Life Imprisonment Mandatory

Discretionary Alternative

Argentina Chile

 (1)

Cuba

 (2)



Chihuahua

México and Quintana Roo



Honduras Mexico Peru

Upper Limit

 (1)







Puebla and Veracruz 

(1)  Mandatory or discretionary in just one case. (2)  Mandatory only when replacing death penalty.

The mandatory or discretionary nature of life sentences depends on the offence in most jurisdictions—only in the Mexican states is life imprisonment uniform in all cases—so there is no discernible regional trend (see

mas-­ estados-piden-prision-vitalicia-al-olvido-la-reinsercion-social (accessed 1 December 2015). The State of Colima also discussed the introduction of life sentences in 2012 (Decree no 598) but the State Congress considered that it was not compatible with the national penitentiary system and the purpose of imprisonment.

52  Beatriz López Lorca Table 2.3). Taking into consideration that in Argentina life imprisonment is discretionary for one type of offence and mandatory for others, while in Chile life imprisonment is mandatory for one type of offence and discretionary for the rest, one may conclude that life imprisonment is mandatory in four Latin American jurisdictions and discretionary in eight. A discretionary life sentence can take two forms. It can come as an alternative to a fixed-term prison sentence. For instance, Article 214 of the Argentinian Criminal Code provides in a case of treason for 10 to 25 years’ imprisonment or for a life sentence, while Articles 327.4 and 328.3 of the Cuban Criminal Code provide for 20 to 30 years’ imprisonment or a life sentence for aggravated robbery. Discretionary life imprisonment can also be the upper limit of a particular penalty. For instance, Article 177 of the Peruvian Criminal Code 1991 provides for imprisonment of from 30 years to life for aggravated rape, while Article 390 of the Chilean Criminal Code provides for imprisonment for 20 years to (an aggravated) life sentence for aggravated murder. Where life imprisonment is merely an upper limit, the maximum fixed-term sentence is effectively unrestricted, as long as it is more than the minimum of 30 or 20 years in these examples. In five jurisdictions life imprisonment is the upper limit of the penalty provided for each offence and it is an alternative sentence in the other four, so no clear trend can be established in this regard. Regarding the prospect of release, models of life imprisonment in Latin America are diverse (see Table 2.4 below). There are life sentences with routine consideration of release by a parole process (LWP) in some jurisdictions and life sentences that cannot be reviewed by a parole process (LWOP) in others. There are even three jurisdictions, namely Argentina, Peru and the State of Mexico, where LWP and LWOP coexist—these are mixed systems in which the existence of routine consideration of release depends on the offence committed. Release mechanisms will be discussed in greater detail further below. Table 2.4:  Models of Life Imprisonment: Prospect of Release LWP

LWOP

Argentina Chile

 

Cuba Honduras Mexico

Peru

Mixed system

  Puebla Quintana Roo

Chihuahua Estado de México Veracruz

Estado de México



Life Imprisonment in Latin America 53 B.  Life Imprisonment, Forced Labour and Prison Work Prior to the 1950s, forced labour as a punitive and disciplinary measure was linked to the implementation of prisons sentences generally (Aguirre 2007). The previously complex relationship between forced labour and life sentences specifically is clearly discernible in Argentina and Chile. As stated above, life imprisonment was introduced in Chile in 1874 and in Argentina in 1886 and it always implied forced labour. The system of penalties in these countries is a reflection of the nineteenth century Spanish classification of penalties and has not been amended since then, explaining why the current Argentinian and Chilean Criminal Codes still provide for hard labour in cases of life imprisonment. In Argentina, there are two types of sentence for life (prisión, reclusión) and both of them involve forced labour according to Articles 6 and 9 of the current Criminal Code. And in Chile, there are three types of sentence for life (presidio perpetuo calificado, presidio perpetuo, reclusión perpetua) and two of them implied forced labour (presidio perpetuo calificado and presidio perpetuo) in accordance to Article 32 of the Criminal Code. However, these provisions can be misleading, as they no longer have any effect in practice. During the twentieth century, prison labour stopped being considered an afflictive measure—a punishment within a punishment –and started to be regarded as one of the most important elements in the rehabilitation process (Henriksson and Krech 1999). Accordingly, Article 54 of the Argentinian Decree Law no 412 of 1958 stated that work should no longer be regarded as a punishment itself but as an important element in the rehabilitation of the prisoner, in effect outlawing forced labour. Subsequently, Argentinian Prison Law was amended (Article 107 of Act no 24.660 of 1996, currently in force) to reflect this stance. The Supreme Court of Justice has also repeatedly stated that the penalty of reclusión has been abolished in practice (Méndez 2005 2011; Gorosito Ibáñez 2007; Argañaraz 2007; Batista 2007). Chilean Prison Law establishes one single regulation regarding prison work irrespective of the type of sentence imposed, and it does not provide for forced labour (Articles 24 et seq of Decree no 518 of 1998), so it can be inferred that forced labour no longer applies in this jurisdiction (Politoff Matus 2004: 489). Consequently, life imprisonment does not imply any specific obligation to work in Latin America—regular provisions on prison work apply—with the sole exception of Honduras. In this jurisdiction, Article 75.2 of the Prison Law (Decree no 64 of 2012), which outlaws forced labour, establishes two types of sentence for life (reclusión, prisión) involving compulsory work. One of them (reclusión) involves working in public works or alternatively in prison, while the other one (prisión) only involves compulsory work in prison (Article 47 of the Criminal Code). However, the parliament of ­Honduras recently passed an amendment to Honduran Prison Law that establishes compulsory work for all prisoners in such a way that prison

54  Beatriz López Lorca work will no longer be considered as a right but a duty (Compulsory Prison Work of Persons Deprived of Liberty Act 2015). IV.  THE CONSTITUTIONALITY OF LIFE SENTENCES

The issue of whether and to what extent life imprisonment is a legitimate form of punishment varies in each legal system. In Latin America, assessing the compatibility of life imprisonment with the constitutional framework was a key criterion when the introduction of life imprisonment was addressed in each Latin American jurisdiction. The constitutionality—or unconstitutionality—of life sentences has been based on penal principles and rights that logically relate to the limits of what are regarded as justifiable forms of punishment in general: prohibitions on cruel, inhuman and degrading punishment; the right to human dignity; and the rehabilitation principle, legality principle, proportionality principle and culpability principle. Some of these arguments have been identified already in comparative law as relevant justifications for life imprisonment (Van Zyl Smit 2002). The compatibility of life imprisonment with the purpose of imprisonment and the human dignity of prisoners is central to the debate about the legitimacy of life sentences. The purpose of imprisonment in the Latin American jurisdictions applying life sentences is rehabilitation (reinserción social).12 This is the core principle on which Latin American prison systems are built in accordance to Article 5.6 of the ACHR. In many instances, however, the rehabilitation principle has ended up being regarded as being compatible with tougher sentencing schemes that accentuate deterrence, retribution, incapacitation and/or public safety. Together with rehabilitation, Cuba and Peru recognise other purposes of imprisonment. In Peru, Article 9 of the Criminal Code refers to prevention as well as the protection of society13 and in Cuba the purpose of imprisonment includes retribution and general and specific prevention (Article 27 of the Criminal Code). The most glaring example is Honduras, where the Constitution states that the purpose of

12 In Argentina, see Art 1 of the Implementation of Deprivation of Liberty Sanctions Act 1996 and Art 13 of the Criminal Code. In Chile, see Art 1 of the Prison Regulation 1998. In Cuba, see Art 27 of the Criminal Code. In Honduras, see Art 87 of the Constitution and Art 1 of the National Prison System Act 2012. In Mexico, see Art 18 of the Constitution and Art 1 of the Standard Minimum Rules on the Social Rehabilitation of Prisoners Act 1971; Arts 2 and 131 of the Security Measures Enforcement Act of Chihuahua 2006; Art 4 of the Deprivation of Liberty Sanctions Enforcement Act of the State of Mexico 1983; Art 121 of the Criminal Code and Article 4 of the Penal Sanction Enforcement Act of Puebla 2011; Art 136 of the Sanctions Enforcement Act of Quintana Roo 2011; and Art 38 of the Prison Act of Veracruz. In Peru, see Art 139.22 of the Constitution, Art 9 of the Criminal Code and Art II of the Penal Enforcement Code 1991. 13  However, Peruvian Prison Law refers to social reintegration as the sole purpose of the sentence (Art II).

Life Imprisonment in Latin America 55 imprisonment is rehabilitation (Article 87) but, at the same time, it includes a clause introducing life sentences when offences are committed in ‘serious, offensive and degrading circumstances’, as they cause particular ‘shock, rejection, outrage, and repugnance on the national community’ (Article 97). This would explain why the constitutionality of life imprisonment has not been challenged in this jurisdiction and it is unlikely to be challenged in the future. The significance of the rehabilitation principle in the debate on the constitutionality of life imprisonment seems to be supported by the fact that the constitutionality of life sentences has not been challenged in jurisdictions where no constitutional reference is made to the rehabilitation principle as the purpose of imprisonment or another purpose of imprisonment has been recognised expressly. Inasmuch as national constitutions do not lay down the purpose of imprisonment, a subjective right to rehabilitation cannot be claimed.14 This would be one of the main reasons why the constitutionality of life imprisonment has not been challenged in Chile thus far (Oxman and González Guarda 2014: 7).15 This is also the case in Cuba, where the purpose of imprisonment is not stated in the Constitution but in the Criminal Code, preventing the challenging of life imprisonment on the grounds of a subjective right to rehabilitation. In addition, the recognition of retribution and deterrence as legitimate purposes of imprisonment (Article 27 of the Criminal Code) would also make questioning the constitutionality of life sentences difficult in this jurisdiction. In the same vein, Article 97 of the Honduran Constitution excludes any possibility of questioning the constitutionality of life imprisonment on resocialisation grounds. Although the constitutionality of life imprisonment is usually based to a great extent on its compatibility with the purpose of imprisonment, compatibility with the prohibition of torture and inhuman or degrading treatment and the right to human dignity also plays an important role. Argentina and Mexico are two clear examples. The constitutionality of life sentences has depended on their compatibility with Article 18 of the Constitution in Argentina, which outlaws all kinds of torture, and the concept of ‘unusual punishment’ in Mexico (Article 22 of the Constitution). 14  This is a well-established jurisprudence in Spain, where this interpretation of the rehabilitation principle was first applied. See the Spanish Constitutional Court judgments 2/1987, 28/1988, 150/1991 and 120/2000. 15  Nevertheless, Art 1 of the Constitution, which states ‘[t]he State is at the service of the human person and its purpose is to promote the common good, for which reason it must contribute to creating the social conditions allowing each and every member of the national community to develop his or her greatest possible material and spiritual development, fully respecting the rights and guarantees established by this Constitution’, would enable Chilean prisoners to claim a generic right to social re-integration, for instance, when prison living conditions or the minimum length of time before the release of an aggravated life sentenced prisoner can be considered (40 years) prevent inmates from ‘the greatest possible material and spiritual development’.

56  Beatriz López Lorca All national c­ onstitutions recognise a more or less comprehensive series of human rights that have a direct impact on how persons deprived of their liberty should be treated: committing an offence cannot lead to a systematic limitation of the prisoner’s fundamental rights that cannot be justified by the purpose of the sentence (Juvenile Re-education Institute v Paraguay 2004: paras 152–53). In this regard, it should be noted that Argentina, Chile, Honduras, Mexico and Peru, as Member States to the ACHR, are obliged to ‘respect’ and ‘ensure’ the Convention rights (Articles 1 and 2 of the ACHR; see also Velasquez Rodríguez v Honduras 1988: paras 170, 172, 174). That is, not only should states implement human rights standards in national laws, but they should also eliminate any law or practice contrary to the provisions of the ACHR ‘that in any way violate the guarantees provided under the Convention’ and elaborate rules and develop practices ‘leading to effective observance of those guarantees’ (Castillo Petruzzi et al v Peru 1999: para 207). A.  Argentina: Embracing the Unconstitutionality of Life Sentences? In Argentina, the Supreme Court of Justice ruled in 2006 that whole life sentences are unconstitutional because they seriously damage ‘the intangibility of the human being’. When a sentence for life will not result in release, it causes ‘serious personality disorders’ that make such a sentence incompatible with Article 18 of the Argentinian Constitution, which outlaws any sort of torture (Giménez Ibáñez 2006: para 4).16 The existence of a judicial mechanism of release would make a sentence for life compatible with the constitutional framework. Interestingly, it has been highlighted that the purpose of imprisonment cannot be divorced from the prohibition of the death penalty: [T]he State cannot definitively ‘eliminate’ any person from society. … It should be remembered that ‘life imprisonment’ appears as the successor to the death penalty, and that the arguments in its favour are practically identical with those in favour of the death penalty: both of them seek a ‘final solution’ by means of the absolute exclusion of the offender. (Giménez Ibáñez 2006, dissenting opinion by Petracchi: para 43)

Social reintegration is regarded as the ‘higher objective’ of the prison ­system and accordingly, the state has ‘the obligation and responsibility to 16  By contrast, before this judgment the National Court of Criminal Appeal upheld the constitutionality of life sentences. It stated that life imprisonment could not be considered torture according to Art 1 of the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Punishment or Treatment because the scope of torture does not include sufferings from legitimate penalties. The Court also added that in any case the ‘sufferings’ deriving from a life sentence are common to all cases of prolonged deprivation of liberty (Chueke 2003).

Life Imprisonment in Latin America 57 provide for all persons serving a sentence suitable custody, which implies also respect for their lives, safety and moral and physical integrity’ (Méndez 2011: para 3). In other words, the state must, as far as possible, collaborate in ‘overcoming possible deficits in the socialisation of those sentenced and that at the very least must not provoke any contrary effects to those desired. Making a serious effort in this direction constitutes an imperative both of practical reason and of human solidarity with the offender’ (Gramajo 2006, dissenting opinion by Petracchi: para 36). However, the constitutionality of life imprisonment, even with the possibility of release, is continuously challenged in Argentina by part of the judiciary (see, for example, Luján Ibarra 2007; Alberto Quesada 2008; Agustín Tórtora 2010, dissenting opinion by Juliano). In 2015, the Criminal Court of Necochea ruled mandatory life with parole (LWP) unconstitutional because it is in breach of some of the most significant constitutional principles of a democratic state governed by the rule of law: the culpability principle (‘a fixed prison term does not allow judges to take into consideration any aggravating or mitigating circumstances’), the social reintegration principle (the possibility of release does not equate to de facto release), the legality principle (a minimum term of imprisonment before one can be considered for release is not a fixed prison term), the prohibition of cruel, degrading or inhuman treatment or punishment (‘serving 35 years in order to be considered for release clearly undermines human dignity’) and the principle of the separation of powers (‘a standard punishment in all cases means decided by the legislator prevents judges from exercising the judicial power’) (Etcheverry, González, and Varela 2013: 46–47).17 Article 18 of the Constitution would not only be a mandate to the legislator but also to the judicial power, which must avoid applying sentences comparable with torture as far as possible, as may be the case with life imprisonment: [W]e judges have a historic debt [to article 18 of the National Constitution] since it constitutes one of the very few constitutional provisions attributing direct responsibility for failing to observe it, and in spite of its long-standing infringement, relevant consequences were never drawn from it. (Luján Ibarra 2007: 9)18

In the same vein, the Supreme Court has stated that a disproportionate sentence could be regarded as a cruel punishment and thus, it could be considered a type of torture in breach of the Constitution: ‘punishment … cannot

17  However, it must be taken into consideration that the Argentinian constitutional system is a diffuse system (sistema constitucional difuso), where judgments do not produce an erga omnes effect. 18  This dissenting opinion of Juliano is related to the so-called ‘conventionality test’ (‘control de convencionalidad’), which would oblige judges to take decisions in accordance with not only the guarantees and principles of the ACHR but also with the interpretations made by the ACtHR. See ACtHR cases Almonacid Arellano v Chile (2006) and Trabajadores cesados del Congreso (Aguado Alfaro and others) v Peru (2006).

58  Beatriz López Lorca be cruel in the sense that it must not be disproportionate to the committed offence. Any penal measure implying deprivation of rights must be proportionate to the seriousness of the crime, or, in other words, to the seriousness of the damage caused to the legal right affected’ (Gramajo 2006: para 19). In this regard, it has even been suggested that life imprisonment may turn out to be so disproportionate that it may be equal to a de facto death penalty, which is specifically prohibited in the Constitution: [I]n particular cases it may be controversial whether the quantity of punishment directly or indirectly implies the total cancellation of the person’s life in accordance with current life expectancy, which could be then considered as the re-introduction of the death penalty via an equivalent route … If the purpose of imprisonment is the reform and social re-adaptation of the prisoner (Art. 5.6 of the ACHR and analogously 10.3 of the ICCPR), it is impossible to understand what possibility of social re-adaptation a person may have when in the majority of cases at the end of the sentence he or she will no longer be a person as a result of his or her death or, even in the exceptional cases in which such an event does not occur, he or she will return to a life of freedom being too old to work and to cope with the deterioration due to such institutionalisation … Given that the death penalty is ruled out, no legal provision can reintroduce it, not merely expressly but also by means of imposing an equivalent … any loss of or rights limitation must have a temporal limit … By accepting the contrary, the law would be creating a capitis disminuito, or civil death, with the consequence that it would give rise to a category of damaged citizens, marked in perpetuity and stigmatized for life, for whom the possibility of civil rehabilitation would be impossible. Such a possibility is inadmissible even with regard to the most serious crimes, whatever the theory of punishment accepted. (Estévez 2010, dissenting opinion by Zaffaroni: paras 7 and 33).

In the area of juvenile sentencing, the application of life sentences to juveniles in Argentina—the only Spanish-speaking country in the region using life sentences for juveniles—has raised specific problems regarding the purpose of imprisonment. The Supreme Court of Justice has clarified that the reintegration principle has a specific meaning in these cases. It requires judges to carefully weight how the negative effects of imprisonment will interfere in the possibilities for social reintegration on the basis of the ‘best interest of the minor’ (Maldonado 2005: para 23). This issue was brought before the American Court of Human Rights ACtHR in 2013, which determined that life sentences imposed on children were in breach of the ACHR.19 Although 19  Accepting as its interpretative principle the best interest of the minor (‘children have the rights possessed by all human beings and in addition those particular rights deriving from their condition, to which correspond particular duties of the family, society and the State’), the Court considered that Argentina had been in violation of Arts 1.1, 7.3 and 19 of the ACHR as the penalties were not imposed as ‘the last resort’. It also stated that life sentences failed to comply with the purpose of imprisonment and consequently they were penalties in breach of Article 5.6 of the ACHR. In addition, given the disproportionality between the penalties and the high psychological impact caused to the individuals sentenced, they constituted cruel and

Life Imprisonment in Latin America 59 Argentina was obliged to adopt all necessary measures to ensure that life sentences would not again be imposed on people who committed a crime when they were under age, Act no 22.278 has not been yet amended. B.  Mexico and the Concept of ‘Unusual Punishment’ In Mexico, life imprisonment was traditionally regarded as unconstitutional. It was considered a cruel and unusual punishment that deprived prisoners of the possibility of rehabilitation and, thus, it was regarded as incompatible with the purpose of imprisonment (P./J. 127/2001 and P./J. 125/2001). However, the Supreme Court ruled life imprisonment constitutional. In 2003, members of the Chihuahua Congress brought an action against the State Congress alleging that Article 27 of the Criminal Code and Article 122 of the Criminal Procedure Code 2008, which authorised consecutive prison terms for kidnapping and murders in attempt to tackle the high levels of crime committed against women and children in Ciudad Juárez, were unconstitutional (Suprema Corte de Justicia de la Nación 2006). Finally, the Supreme Court in 2005 ruled the Criminal Code and the Criminal Procedure Code constitutional, making de facto life imprisonment constitutional (Acción de Inconstitucionalidad 20/2003). After this judgment, state legislators were entitled to introduce life imprisonment into their legal systems. The Court stated that the purpose of imprisonment could also enable harsher penal policies focused on the deterrence and incapacitation effects of punishment and that any penalty should be proportional to the seriousness of the crime. If the constitutional legislator had wished to lay down a maximum term of imprisonment, it would have done so by wording Articles 18 and 22 of the Constitution differently. The fact that the constitutional legislator did not do so implied that it was allowing a later shaping of penalties according to the proportionality principle and Article 125 of the Constitution, which allows each federal state to enact its own penal codes. Inasmuch as life sentences make it possible to combine the seriousness of the crime, social risk and public safety in order to preserve the legal order, such sentences are compatible with the constitutional framework and thus, constitutional penalties (Acción de Inconstitucionalidad 20/2003).

inhuman treatment (Arts 5.1 and 5.2 of the ACHR). On the other hand, the Court also pointed out that the Procedural Criminal Code prevented any review by a higher court (Art 8.2 of the ACHR). Argentina also failed to provide for suitable medical care and did not investigate the torture allegations and the death of one of the juveniles sentenced (Art 5.1 and 5.2 of the ACHR; Arts 8.1 and 25.1 of the ACHR; and Arts 1, 6 and 8 of the Inter-American Convention on the Prevention and Punishment of Torture). See the ACtHR case, Mendoza et al v Argentina (2013).

60  Beatriz López Lorca Subsequently, although the Court pointed out that its decision was not in conflict with previous case law on life imprisonment as it was approved in an eight-to-two vote and thus had an erga omnes effect, the constitutionality of life imprisonment was challenged by three judges from the Supreme Court (Solicitud de modificación de jurisprudencia 2/2005). The Court reiterated that resocialisation as the purpose of imprisonment was compatible with the prison sentences also serving other goals of punishment, such as retribution. In this regard, the Court stated that the main goal should be the preservation of ‘the external order in society’. It took the view that the concept of ‘unusual penalty’ should be divorced from its grammatical meaning (‘un-used penalty’) on the grounds that there would be no sense in prohibiting the application of any penalty not used before, as Article 22 of the Constitution would then constitute ‘a barrier to the development of penal science, which tends to the protection of society’ (Solicitud de modificación de jurisprudencia 2/2005: 1).20 On the contrary, the scope of Article 22 should be open to review depending on the ‘the stability or the changes of circumstances to which its meaning is adjusted to, without ignoring or distorting the intention of the constitutional legislator’ (Solicitud de modificación de jurisprudencia 2/2005: 1). Thus, a penalty would be considered unusual when meeting the following characteristics outlined next. After that, the Court revisited the concept of ‘unusual punishment’. First, it must have the purpose of causing ‘pain or physical alteration’ to the convicted person. Secondly, it must be excessive in relation to the crime, not corresponding to the purpose of imprisonment or its determination left to judicial or administrative discretion. And finally, despite being used in some legal systems, it must be rejected ‘in the majority of legal systems’. Taking into consideration these criteria, the Court stated that life imprisonment would not be an unusual sentence because ‘even if it prevents freedom of movement, it does not aim to cause pain or physical alteration to inmates’. It is neither disproportionate, nor does it prevent the social rehabilitation of the convicted person, which is a question more related to the implementation of the sentence rather than its application. If the individual does not reintegrate into society, it does not mean that the sentence is ‘unusual’. Finally, the Supreme Court concluded that if the intention of

20  In one of the two dissenting opinions, it was pointed out that life imprisonment would not ‘contribute to the progress of the penal science’. On the contrary, life imprisonment would lead to a shift ‘in the opposite direction’ as ‘the greater the cruelty of punishment, the more the minds of men harden’ (Solicitud de modificación de jurisprudencia 2/2005: dissenting opinion by Genaro David Góngora Pimentel). In the second dissenting opinion, it was highlighted that Mexican courts, including the Supreme Court, are not entitled to amend the Constitution. The judiciary can only apply it according to Art 133 of the Mexican Constitution, which provides that the Constitution, the laws of Congress and every treaty should be the supreme law of the land, by which each state must abide (Solicitud de modificación de jurisprudencia 2/2005: dissenting opinion by Juan N Silva Meza). See also Ortega (2007: 1042–043).

Life Imprisonment in Latin America 61 the constitutional legislator had been to make social reintegration the only purpose of imprisonment, this would have been expressly stated in the Constitution (P./J. 1/2006: 6).21 Nevertheless, the Supreme Court of Justice will examine Article 127 of the Criminal Code of Chichuahua and discuss the constitutionality of life imprisonment once again (Facultad de atracción 83/2015) after an offender was convicted for murder and sentenced to more than 200 years’ imprisonment (a de facto life imprisonment). C.  Peru and the Possibility of Release In Peru, the debate on the constitutionality of life imprisonment resembles the discussion addressed in the well-known German Constitutional Court judgment from 1977 (BVerfGE 5 45, 187 of 21 June 1977):22 life sentences would not breach the rehabilitation principle as long as the legislator provides for a judicial mechanism for release. The constitutionality of life imprisonment was first discussed in 2003, when the Constitutional Court reviewed several provisions of the 1992 antiterrorist laws passed by President Fujimori, including the provisions of the Decree Law no 25475 1992 providing for life sentences without the possibility of release (Ruebner et al 2004: 10–24). The compatibility of life sentences with the purpose of imprisonment was a central issue. According to the Constitutional Court, the social reintegration principle is a binding mandate for action, both to the legislator and the judiciary, that requires the existence of a fixed determinate prison term to be served. The Court recognised that, even if there is some room for the legislator to establish the scope of the penalties, it is a constitutionally binding mandate that the offender must have the possibility of returning to society. This is why the Peruvian Constitutional Court stated that life imprisonment was not unconstitutional per se if review mechanisms were provided: a life sentence, it argued, has a beginning and must have an end. Conversely, the Court also considered that a life sentence without the possibility of release was in breach of the principles of liberty, dignity and proportionality (Marcelino Tineo Silva y más de 5000 ciudadanos 2003: 43–48). This judgment required the amendment of the life imprisonment sentencing guidelines in former Decree Law no 25475 and the introduction of a new regulation. Later in 2003, Decree Law no 921 was passed, establishing the minimum period of imprisonment that should be served before early release can be granted (35 years). The constitutionality of life imprisonment was again challenged in 2006, but the Constitutional Court reiterated that the social reintegration 21  22 

Also see Pérez Fernández Ceja (2007). Also see, for instance, Van Zyl Smit (1992).

62  Beatriz López Lorca ­ rinciple only requires the existence of a possibility of release and thus p Decree Law no 921 met the life imprisonment sentencing guidelines established in the 2003 judgment (5186 ciudadanos c. Poder Ejecutivo y Poder Legislativo 2006: 13–29). Recently, in 2012, the constitutionality of life imprisonment was challenged on the understanding that the 2003 judgment was based on purely political criteria and that the possibility of release does not solve the problem of compatibility between life imprisonment and the purpose of imprisonment. However, the Constitutional Court, as expected, denied that the 2003 judgment was a political decision and once more validated the judicial review mechanism in the Decree Law no 921 (Más de 5000 ciudadanos c. Congreso de la República y Poder Ejecutivo 2012). V.  RELEASE PROCESS

In contrast to the European context, the issue of life imprisonment is not on the Latin American penological agenda and the failure to provide for a prospect of release by establishing mechanisms for review of life sentences has thus far not become part of the wider discussion on what amounts to inhuman and degrading treatment or punishment within the Inter-American human rights system. Rather, the debate focuses on the challenge posed by the systematic violation in Latin American prisons of the right to humane treatment recognised in Article 5 of the ACHR (IACHR 2011; Nash 2014: 131– 60; Martínez Breña 2014: 177–93). This encompasses the right to have for respect of physical, mental and moral integrity (Article 5.1) and outlaws torture and cruel, inhuman or degrading treatment or punishment (Article 5.2). The Inter-American Court has even ruled that violations of Articles 5.1 and 5.2 give rise to situations that are contrary to the ‘essential aim’ of the penalty of imprisonment, as established in Article 5.6 of the ACHR and prevent ‘the reform and social readaptation of the prisoners’ (Lori Berenson-Mejía v Peru 2004: para 101; García Asto and Ramírez Rojas v Peru 2005: para 223; Penal Miguel de Castro v Peru 2006: para 314).23

23  In the same vein, the Inter-American Commission has stated that ‘Any expectation of personal rehabilitation and reintegration into society is impossible in correctional systems where systematic torture and cruel, inhumane and degrading treatment of inmates by the authorities themselves occur, in which high indices of prison violence are reported, existence of prisons where the actual control of internal security is exercised by the prisoners themselves and not the competent authorities, and in which the State does not provide the minimum space, nourishment, sanitation and medical attention’; IACHR (2011: para 610). For that reason, the State ‘must assume a series of particular responsibilities and take different special initiatives in order to guarantee for the inmates the conditions necessary in order to have a dignified life and contribute towards the effective enjoyment of those rights which cannot under any circumstances be restricted or those whose restriction does not necessarily derive from deprivation of liberty and which is not therefore permissible’; see the ACtHR case Juvenile Re-education Institute v Paraguay (2004: para 153).

Life Imprisonment in Latin America 63 However, the Inter-American Court has not yet explored the intersection between the rehabilitation principle, together with the right to a humane treatment, and the mechanisms for release. Nor has it considered to what extent the failure to provide for a ‘right to hope’ (a real and feasible possibility of release for all inmates) would hinder the process of rehabilitation and amount to inhuman treatment. The purpose of imprisonment not only involves the creation of prison living conditions that ensure prisoners’ human rights, but also the possibility of an eventual release in order to reintegrate into society. Otherwise, the concept of social rehabilitation would become meaningless.24 This is why addressing the mechanism for release should be a central penological issue, especially when considering life sentences (Pinto de Alburquerque 2015).25 In Argentina, the minimum term to be served before being considered for release is 35 years (Article 13 of the Criminal Code).26 However, conditional release cannot be granted to offenders convicted for aggravated homicide, rape resulting in death, hostage taking or kidnapping resulting in intentional death and robbery resulting in death (Article 13 of the Criminal Code).27 Thus, in Argentina there is both LWP and LWOP, depending on the type of offences for which prisoners are convicted (see Table 2.4) In the case of LWOP, the President of the Republic retains the power to pardon and commute sentences (Article 99.5 of the Constitution), so there is still a prospect for release, which may prevent LWOP from becoming a fully whole life sentence.28 24  ‘[T]he mandate of article 5.6 of the American Convention refers to the obligation of the State to provide the necessary assistance and opportunities to convicted persons, so they can develop their individual potential and deal with their return to society … [prisoners should have] a real access to productive activities designed to foster their rehabilitation’; see IACHR (2011: para 608). Also see regarding prison living standards the ACtHR cases Pacheco Teruel et al v Honduras (2012); Lori Berenson-Mejía v Peru (2004: para 102); Vélez Loor v Panamá (2010: para 204). 25 In the Latin American countries where life imprisonment is in force there are several prison benefits that may entail a reduction in the prison terms but they have not been addressed in this article. Only judicial mechanisms involving release—namely, conditional release—and executive mechanism will be addressed. 26  This term was introduced by Act no 25.892 of 2004, which increased the minimum term from 20 to 35 years. 27  This clause was also introduced by Act no 25.892. These offences provide for a life sentence with the sole exception of aggravated robbery, which provides for a determinate sentence (10 to 25 years of imprisonment). 28  Presidential pardon and commutation cannot be granted to those convicted for ‘acts of force against the institutional order and the democratic system’ (Art 36 of the Constitution), that is, for those convicted for rebellion (Arts 226 and 227 of the Criminal Code). Also see Baigún (1994). Recently, Argentina passed a law that prohibits granting pardon, commutation or amnesty for prisoners convicted for serious human rights violations (Act no 27.156, July 2015). Specifically, Art 1 establishes that prisoners convicted for any offences regulated in the Rome Statute or in any of the other international human rights treaties as mentioned in Art 75.22 of the Constitution cannot be granted pardon, commutation or amnesty. Neither of these offences provide for a life sentence so restrictions on the application of executive review mechanism do not interfere with LWOP offences.

64  Beatriz López Lorca In Chile, the minimum length of time before the release of life sentenced prisoners can be considered changes according to the type of life sentence. In the case of life imprisonment (presidio perpetuo), prisoners must serve 20 years before being eligible for release and 40 years when sentenced to aggravated life imprisonment (presidio perpetuo calificado) (Article 32 bis of the Criminal Code, Article 3 of the Conditional Release Act of 1925 and Article 4 of the Regulation on Conditional Release of 1926). Unlike Argentina, conditional release is not restricted to certain offences, so life imprisonment and aggravated life imprisonment in Chile are shaped as LWP in all cases (see Table 2.4). However, presidential pardon or commutation cannot be granted to prisoners convicted for terrorism (Article 9 of the Constitution and Article 1 of Act no 18.050 of 1981) or to aggravated life imprisonment, except when ‘specifically foreseen’, for ‘state reasons’ or due to ‘serious and incurable health conditions that involves imminent risk of death or advanced situation of dependency that prevents the prisoner from looking after himself/herself’ (Article 32 bis.3 of the Criminal Code). This means that prisoners sentenced to aggravated life imprisonment have to serve 40 years de facto before being released into society. In Cuba, life imprisonment cannot be reviewed by a parole process ‘except in exceptional cases’ after the prisoners concerned have served 30 years (Article 58 of the Criminal Code) when there are substantial grounds for believing that the prisoners deserve it (Article 31.3 of the of the Criminal Code). The Constitution establishes the power of pardon, which can be exercised by the Council of State (Article 90.ll).29 So, a priori, life imprisonment is shaped like LWOP but the existence of a prospect of release—even if it is rather small one—would turn LWOP into LWP (see Table 2.4). In Honduras, the 2012 National Prison System Act 2012 states that any prisoner meeting the legal requirements is eligible for conditional release (Article 126). According to the Criminal Code, conditional release may be granted if the offender has served three quarters of the sentence (Article 76). As there are no specific provisions prohibiting the granting of conditional release to life sentence prisoners or referring to how conditional release is

29  The 1978 Decree Law no 18 regulates the exercise of pardon in Cuba. Unfortunately, this piece of regulation could not be accessed to check whether this power is or is not granted to life sentenced offenders. Recently, the Cuban government pardoned more than 3,500 prisoners as a ‘humanitarian gesture’ ahead of the visit of Pope Benedict XVI. According to Decree no 1/2015, pardon has been granted, taking into consideration ‘the nature of the facts, inmates’ behaviour, the term already served and inmates’ health’. Those receiving pardons included, among others, non-recidivist inmates over 60 or under 20 years old and inmates having served most of their sentence. However, those convicted for homicide, rape, drug trafficking, aggravated robbery and other serious offences were not eligible for pardon. See Órgano Oficial del Comité Central del Partido Comunista de Cuba (2015). According to this information, a priori it seems unlikely that life sentence prisoners were granted—or eligible for—pardon.

Life Imprisonment in Latin America 65 imposed to this type of inmate, a priori, life imprisonment in Honduras may be regarded as LWP. However, life imprisonment cannot be reviewed by a parole process in practice and thus, it is a LWOP (see Table 2.4). On the other hand, there are executive mechanisms for release according to Article 245.24 of the Constitution. The granting of pardon and commutation depends on the seriousness of the offence and, despite the fact that it cannot be granted to offenders convicted for certain ‘crimes’ (Article 7 of the Decree no 31 of 2013), life offences are not included in this list. However, life offences could be regarded as crimes that involve a severe violation of human rights and cause ‘social disruption’ according to Article 7 and thus, lifers would not be eligible for pardon or commutation. Taking into consideration that Article 97 of the Honduran Constitution introduced life imprisonment for offences committed in ‘serious, offensive and degrading circumstances’ as they cause particular ‘shock, rejection, outrage, and repugnance on the national community’, it is unlikely that pardon or commutation can be granted to life sentence prisoners. Thus, life imprisonment in Honduras would be a form of whole life sentence. In Mexico, five states have LWOP (see Table 2.4). In the State of Chihuahua, conditional release is not granted to prisoners convicted for certain serious offences, including aggravated homicide under Article 127 of the Criminal Code and aggravated extortion (Article 70 of the Sentence and Security Measures Enforcement Act of 2006). Both offences provide for a life sentence. In the State of Mexico, conditional release is not granted to prisoners convicted for aggravated homicide (for instance, femicide), rape, extortion and robbery resulting in death (Article 468 of the Criminal Procedure Code of 2008). These offences lead to life sentences as well. Finally, in Veracruz, conditional release is not granted to those convicted for aggravated homicide and kidnapping (Article 94 of the Criminal Code 2003), which are also life offences. By contrast, there are no legal restrictions on the granting of conditional release in Quintana Roo or Puebla, so life imprisonment a priori could be regarded as a form of LWP. However, the absence of specific provisions on conditional release in relation to life means that life imprisonment is a form of LWOP in practice. Taking into consideration the limited executive mechanisms for release, LWOP may become a whole life sentence in the five Mexican states in some cases. At the federal level, pardon can be granted under certain circumstances but according to Article 97 of the Criminal Code prisoners convicted for intentional homicide and murder, rape and kidnapping are not eligible for pardon. Thus, prisoners convicted for homicide under Article 127 of the Criminal Code in Chihuahua, for aggravated homicide and rape in the State of Mexico, for aggravated kidnapping in Puebla, for aggravated rape in Quintana Roo and aggravated homicide in Veracruz would be sentenced to a whole life sentence. Finally, in Peru, the minimum term to be served before being considered for release is 35 years (Article 1 of the Decree no 921 of 2003). However,

66  Beatriz López Lorca conditional release cannot be granted to prisoners convicted of aggravated kidnapping, aggravated rape, aggravated robbery, extortion and aggravated theft of firearms (Article 56 of the Penal Enforcement Code 1991), which are all offences punishable by life imprisonment. Conditional release cannot be granted for those convicted of terrorist offences (Decree Law no 25.475 of 1992). So, in practice, life sentence prisoners will be granted conditional release only when convicted for femicide (see Table 2.4). Regarding the executive mechanisms for release: there are no legal restrictions on pardons, with the sole exception of those convicted for aggravated rape under Article 173 of the Criminal Code (Article 25 of the 2010 Regulations on the Presidential Pardon Commission). Thus, in this case, life imprisonment would turn into a whole life sentence. However, pardon could still be granted for humanitarian reasons to: those who suffer a terminal illness and irreversible or a degenerative non-terminal illness; those suffering a non-­ terminal illness for whom prison can cause a serious risk to their life, health or integrity; and those affected by chronic, irreversible or degenerative mental disorders (Article 31 of the Regulations on the Presidential Pardon ­Commission). Thus, only these extreme circumstances prevent offenders who are convicted of rape and sentenced to life imprisonment from being sentenced to a whole life sentence. VI.  CONCLUDING REMARKS

Currently, life imprisonment is not a major penological issue on the Latin American agenda, and limited scholarly attention has focused on this ultimate penalty, especially compared to the European context. Neither does life imprisonment seem to be a major concern to the Inter-American Court or the Inter-American Commission on Human Rights. The systematic violation of prisoners’ human rights in Latin American prisons—greatly facilitated by the existence of a broad array of structural shortcomings (IACHR, 2011: 2)—is a priority issue that needs to be addressed. However, life imprisonment should not be regarded as a closed debate, as shown by the Argentinian case law, the Peruvian unconstitutionality actions and the recent legislative changes in some Mexican states. Perhaps the most significant feature of life imprisonment in Latin A ­ merica is that it was not introduced as the automatic substitute for the death ­penalty—although Peru and Cuba may be regarded as exceptional cases— and that it is not as widely used as might be expected. Unlike Europe and the Commonwealth countries, Latin America is an almost life-imprisonmentfree zone and, besides, life imprisonment is not the main challenge to the right to life and human dignity. In Latin America, life imprisonment is combined with two other sentencing schemes that also lead to long periods of incarceration: long-term prison sentences, and cumulative sentences. There

Life Imprisonment in Latin America 67 is a clear likelihood that long periods of effective imprisonment—as a global concept—will emerge as the next penological issue in the region. In the six countries that have life imprisonment it has continued to be the state response to the most serious offences, although not necessarily murder. This will continue to be the case, as the scope of life imprisonment tends to broadens because the ACHR and its 1990 Protocol on the death penalty prevent the (re)introduction of capital punishment while at the same time violent criminality rates remain worryingly high (Soares and Naritomi 2010; Carranza 2012). However, there are no clear-cut trends in the region. Each legal system has shaped life imprisonment in an independent and autonomous way. Legislative sovereignty has been a key factor—and will continue to be—in determining the various national penal policies and understanding how certain Latin American societies have responded to serious crime and persistent offenders. This would explain, for instance, why even the Mexican states, where life imprisonment is currently in force, have chosen different approaches to this type of penalty—with three of the five states choosing a form of LWOP. The situation of legal uncertainty that, in many cases, affects life imprisonment in law and practice should also be acknowledged. Together with sentence planning, the mechanisms of release are a key element that prevent life sentences from becoming a degrading or inhumane punishment and thus make life imprisonment compatible with the rehabilitation principle and the constitutional framework in each national jurisdiction. However, life imprisonment models in Latin America include life sentences that cannot be reviewed by a parole process, and for these offenders reintegration into society depends on executive decisions. In some specific cases LWOP can even become a truly whole life sentence, as there may be no possibility of release at all. This raises the question to what extent the rehabilitation principle and the principle of humane treatment may be relegated to a merely formal role, as is the case in many Western jurisdictions. REFERENCES

Aguirre, C (2007) ‘Prisons and Prisoners in Modernising Latin Arnerica, 1800–1940’ in F Dikórrer and I Brown (eds), Cultures of Confinement. A History of the Prison in Africa, Asia, and Latin America (Ithaca, ­Cornell University Press). Baigún, D (1994) ‘El delito de atentado al orden constitucional y la vida democrática de la constitución nacional’ in GJ Bidart Campos and HR Sandler (eds), Estudios sobre la reforma constitucional de 1994 (Buenos Aires, Instituto de Investigaciones Jurídicas y Sociales). Carranza, E (2001) ‘Sobrepoblación penitenciaria en América Latina y el Caribe: situación y respuestas posibles’ in E Carranza (coord.), Justicia

68  Beatriz López Lorca penal y sobrepoblación penitenciaria: respuestas posibles (México, Siglo XXI). —— (2006) ‘Política Criminal y Penitenciaria en América Latina y el ­Caribe’ in Vigencia de las Reglas Mínimas de las Naciones Unidas para el tratamiento de los reclusos (La Habana, Reforma Penal Internacional, ILANUD, Sociedad Cubana de Ciencias Penales). —— (2012) ‘Situación penitenciaria en América Latina y el Caribe ¿Qué hacer?’ Anuario de Derechos Humanos, 8, 31–66. Heriksson, H and Krech, R (1999) ‘International Perspectives’ in D van Zyl Smit and F Dünkel (eds), Prison Labour: Salvation or Slavery? (Ashgate, Oñati International Series in Law and Society). Hood, R and Hoyle, C (2015) The Death Penalty. A Worldwide Perspective 5th edn (Oxford, Oxford University Press). Inter-American Commission on Human Rights (2011) Report on the situation of persons deprived of liberty in the Americas OEA/Ser.L/V/II. Doc. 64, 31 December 2011. Martínez Breña, L (2014) ‘La pena privativa de libertad a la luz del sistema interamericano de derechos humanos’ in S García Ramírez et al (eds), Criterios y Jurisprudencia Interamericana de Derechos Humanos: Influencia y Repercusión en la Justicia Penal (México, Universidad Autónoma de México). Mir Puig, S (2008) ‘Legal Goods Protected by the Law and Legal Goods Protected by the Criminal Law as Limits to the State’s Power to Criminalize Conduct’ New Criminal Law Review, 11(3) 409–18. Misión Permanente de Cuba ante la Oficina de las Naciones Unidas en Ginebra y los Organismos Internacionales con sede en Suiza (2012) Nota de respuesta de Cuba a la solicitud de información de la Oficina de la Alta Comisionada de las Naciones Unidas para los Derechos Humanos relativa a la resolución de la Asamblea General de las Naciones Unidas 65/206 sobre la moratoria de la pena de muerte. Ginebra, 26 de abril del 2012. Available online at www.minrex.gob.cu/es/nota-de-respuesta-de-cuba-lasolicitud-de-informacion-de-la-oficina-de-la-alta-comisionada-de-las-0 (accessed 22 June 2016). Nash, C (2014) ‘Artículo 5. Derecho a la integridad personal’ in C Steiner and P Uribe (eds), Convención Americana sobre Derechos Humanos. Comentario (Bogotá, Konrad-Adenauer-Stiftung). Órgano Oficial del Comité Central del Partido Comunista de Cuba (2015) ‘Acordó Consejo de Estado indultar a 3 522 sancionados’. Available online at http://www.granma.cu/cuba/2015-09-10/acordo-consejo-deestado-indultar-a-3-522-sancionados (accessed 1 November 2015). Ortega, F J (2007) ‘De Facto Life Imprisonment in Mexico and the U.S.Mexico Extradition Treaty of 1978’ Wisconsin International Journal, 24, 1017–1044.

Life Imprisonment in Latin America 69 Oxman, N and González Guarda, C (2014) ‘La pena de presidio perpetuo calificado en Chile y los derechos humanos’. Paper for the I Congreso Internacional de Seguridad, Justicia y Sistema Penal, University of Valencia 5–7 February 2014. Pérez Fernández Ceja, Y (2007) ‘El cambio de jurisprudencias de la Suprema Corte de Justicia de la Nación sobre la interpretación del concepto de pena inusitada’ Revista Jurídica. Facultad de Jurisprudencia, 23, 631–67. Pinto de Alburquerque, P (2015) ‘Life Imprisonment and the European Right to Hope’ Rivista de l’Associazione Italiana dei Costituzionalisti, 2, 1–10. Politoff Matus, R (2004) Lecciones de Derecho Penal chileno, Parte ­General (Segunda edición, Editorial Jurídica de Chile). Ruebner, R et al (2004) ‘The War on Terrorism: Peru’s Past and Present. A Legal Analysis’. John Marshall School of Law, Chicago, August 2004. Available online at http://repository.jmls.edu/whitepapers/6 (accessed 15 August 2015). Soares, R R and Naritomij J (2010) ‘Understanding the High Crime Rates in Latin America: The Role of Social and Policy Factors’, in R Di Tella, S Edwards and E Schargrodsky (eds), The Economics of Crime: Lessons for and from Latin America (Chicago, University of Chicago Press). Suprema Corte de Justicia de la Nación (2006) ‘Reforma al Código Penal del Estado de Chihuahua. Acumulación de la pena de prisión relacionado con el asunto que se denominó en medios como “las muertas de Juárez”’, in Serie de Crónicas de asuntos relevantes del Pleno y las Salas de la Suprema Corte de Justicia de la Nación. Van Zyl Smit, D (1992) ‘Is Life Imprisonment Constitutional? The German Experience’ Public Law, 263–78. —— (2002) Taking Life Imprisonment Seriously in National and International Law (The Hague, Kluwer Law International). LIST OF CASES

Domestic Cases Argentina Supreme National Court of Justice Argañaraz 2007 (A. 1773. XXXIX, Recurso de Hecho, Argañaraz, Pablo Ezequiel s/ causa 1068, 17 de octubre de 2007) Batista 2007 (B. 2164. Recurso de Hecho, Batista, Walter Hugo s/causa 6507, 11 de diciembre de 2007)

70  Beatriz López Lorca Estévez 2010 (E. 519. XLI, Recurso de Hecho, Estévez, Cristián Andrés o Cristian Daniel s/robo calificado por el uso de armas, causa no 1669/1687, 8 de junio de 2010) Giménez Ibáñez 2006 (G. 239. XL. Recurso de Hecho, Giménez Ibáñez, Antonio Fidel s/libertad condicional, 4 de julio de 2006) Gramajo 2006 (G. 560. XL. Recurso de Hecho, Gramajo, Marcelo Eduardo s/robo en grado de tentativa, causa no 1573, 5 de septiembre de 2006) Gorosito Ibáñez 2007 (G. 1711. XLI. Recurso de Hecho, Gorosito Ibáñez, Carlos Ángel s/ causa no 6284, 11 de septiembre de 2007) Maldonado 2005 (M. 1022. XXXIX. Recurso de Hecho, Maldonado, Daniel Enrique y otro s/ robo agravado por el uso de armas en concurso real con homicidio calificado, causa no 1174, 7 de diciembre de 2005) Méndez 2011 (M. 821. XLIII. Méndez, Daniel Roberto s/recurso de casación, 1 de noviembre de 2011) Criminal Court of Necochea Agustín Tórtora 2010 (causa 4532-0238, Tórtora, Agustín s/Homicidio Calificado) Alberto Quesada 2008 (causa 4228-0177, Quesada, Alberto s/ Homicidio calificado) Etcheverry, González, and Varela 2013 (causa 4850-0039, Etcheverry, Daniel Ricardo; González, César Juan Manuel y Varela, Mario Martin s/ homicidio calificado por el concurso premeditado de dos o más personas; lesiones graves culposas y robo) Luján Ibarra 2007 (causa 4075-0096, Luján Ibarra, Omar Remigio s/ Homicidio doblemente calificado) National Criminal Court of Appeals Chueke 2003 (Chueke, Daniel I. y otros s/recurso de casación, causa 4527, 28 de agosto de 2003) Mexico Supreme National Court of Justice P./J. 125/2001(Semanario Judicial de la Federación y su Gaceta, tomo XIV, octubre de 2001, página 13) P./J. 127/2001 (Semanario Judicial de la Federación y su Gaceta, tomo XIV, octubre de 2001, página 15) P./J. 1/2006 (Jurisprudencia P./J. 1/2006, publicada en el Semanario Judicial de la Federación y su Gaceta, tomo XXIII, febrero de 2006, página 6)

Life Imprisonment in Latin America 71 Acción de Inconstitucionalidad 20/2003 (Diario Oficial de la Nación, 10 de mayo de 2007) Solicitud de modificación de jurisprudencia 2/2005 (Semanario Judicial de la Federación y su Gaceta, tomo XXIII, mayo de 2006, página 339) Facultad de atracción 83/2015 Peru Constitutional Court Marcelino Tineo Silva y más de 5.000 ciudadanos 2003 (0010-2002-AI/TC, 2 de enero de 2003) 5186 ciudadanos c. Poder Ejecutivo y Poder Legislativo 2006 (003-2005PI/TC, 9 de agosto de 2006) Más de 5.000 ciudadanos c. Congreso de la República y Poder Ejecutivo 2012 (00012-2011-PI/TC, 10 de julio de 2012) Spain Constitutional Court Judgment 2/1987 (Sentencia del Tribunal Constitucional 2/1987, de 21 de enero) Judgment 28/1988 (Sentencia del Tribunal Constitucional 28/1988, de 23 de febrero) Judgment 150/1991 (Sentencia del Tribunal Constitucional 150/1991, de 4 de julio) Judgment 120/2000 (Sentencia del Tribunal Constitucional 120/2000, de 10 de mayo) Germany Constitutional Court 45 BVerfGE 187 1977 Inter-American Court of Human Rights Almonacid Arellano v Chile 2006 (Judgment of 26 September 2006, Series C no 154) Castillo Petruzzi et al v Peru 1999 (Judgment of 30 May 1999, Series C no 52) García Asto and Ramírez Rojas v Peru 2005 (Judgment of 25 November 2005, Series C no 137)

72  Beatriz López Lorca Juvenile Re-education Institute v Paraguay 2004 (Judgment of 2 September 2004, Series C no 112) Lori Berenson-Mejía v Peru 2004 (Judgment of 25 November 2004, Series C no 119) Mendoza et al v Argentina 2013 (Judgment of 14 May 2004, Series C no 260) Pacheco Teruel et al v Honduras 2012 (Judgment of de 27 April 2012, Series C no 241) Penal Miguel de Castro v Peru 2006 (Judgment of 25 November 2006, Series C no 160) Trabajadores cesados del Congreso (Aguado Alfaro and others) v Peru 2006 (Judgment of 24 November 2006, Series C no 158) Velasquez Rodríguez v Honduras 1988 (Judgment 29 July, 1988, Series C no 4) Vélez Loor v Panamá 2010 (Judgment of 23 November 2010, Series C no 218)

Part II

Life without Parole around the World

74

3 Life without Parole in Australia: Current Practices, Juvenile and Retrospective Sentencing KATE FITZ-GIBBON

I. INTRODUCTION

T

HE IMPOSITION OF a life sentence raises significant human rights issues that in recent years have animated scholarly, political and community debate. This debate has largely centred on whether the use of life sentences, and in particular terms of life without parole (LWOP), are in breach of international human rights standards which expressly ban inhuman or degrading treatment or punishment, and promote proportionality in sentencing. For this reason, the European Court of Human Rights (ECtHR) has often dealt with issues arising from the imposition and implementation of the life sentence (for example, Hussain v United Kingdom 1996; Stafford v United Kingdom 2002), particularly in relation to delays in parole reviews and mechanisms for recall (Easton and Piper 2012; Stone 2008). This body of case law has largely focused on adherence to, and potential breaches of various articles contained in the European Convention on Human Rights (ECHR), including Article 3 ‘Prohibition of torture’, Article 5 ‘Right to liberty and security’, Article 7 ‘No punishment without law’ and Article 14 ‘Prohibition of discrimination’. In cases involving a juvenile offender the imposition of a life sentence raises additional and important concerns ­relating to the UN Convention on the Rights of the Child. The 2013 judgment of the ECtHR’s Grand Chamber in Vinter and ­Others v United Kingdom (2013) bought to the fore debates surrounding the ­viability of terms of LWOP. In Vinter the Grand Chamber ruled that all persons sentenced to life imprisonment have a right to both the prospect of release as well as a review of sentence, and that failure to provide both of these rights breaches international standards against inhuman or degrading treatment or punishment, namely the Article 3 right not to be tortured

76  Kate Fitz-Gibbon or subject to inhuman or degrading treatment.1 The Vinter case provides an important opening for debate surrounding the viability of LWOP in the Australian context. Despite the rising level of debate in Europe, life imprisonment has been the subject of very little political scrutiny or legal scholarship in Australia (with the exception of Anderson 1999; 2006; 2012). Terms of life imprisonment have been implemented (and in some cases mandated) in Australia since the abolition of capital punishment (Potas 1989) and in recent decades have been extended beyond homicide offences to apply to non-fatal offences (for example, rape) and non-violent offences (for example, drug trafficking). In the two years since the ECtHR’s judgment in Vinter, Australian courts have continued to impose LWOP sentences with little acknowledgement of international debate surrounding the viability of such terms of imprisonment. While this may be expected given the distance between Europe and Australia, it does illustrate that, at a time when support for this punishment is dwindling in other Western jurisdictions, it continues to be imposed with little debate across Australian state and territory jurisdictions. This chapter provides a timely opportunity for Australia to join the international debate on life sentencing. In examining LWOP in Australia with a focus on human rights, it contributes to a broader body of research that has critiqued the imposition of life sentences from a principled, fair labelling and proportionality perspective (see Appleton and Grøver 2007; Anderson 2012; van Zyl Smit 1999; van Zyl Smit and Ashworth 2004). This chapter is structured in four sections. Section I looks at the practice of life imprisonment in Australia and section II examines the availability of LWOP as a sentence across the Australian state and territory jurisdictions. The second half of the chapter focuses on two specific issues—the imposition of LWOP in cases involving a juvenile offender (section III) and mechanisms of release for life sentence prisoners (section IV). Key case examples are provided throughout to illustrate the operation of current laws governing life imprisonment in Australia. The chapter concludes that the imposition of life sentences should be reviewed and the relevant law reformed to better align Australian state and territory domestic laws with international human rights standards. II.  LIFE IMPRISONMENT IN AUSTRALIA

Australia has six states, two territory and one federal criminal justice ­systems; each with their own sentencing legislation. Each state and territory jurisdiction adopts a different approach to which offences attract a 1  For further discussion of Vinter, see Bild (2015); van Zyl Smit, Weatherby and Creighton (2014).

Life without Parole in Australia 77 life sentence, whether such a sentence can be imposed upon juvenile as well as adult offenders, and whether life imprisonment is mandatory, presumptive or discretionary for serious offences. Consequently, an analysis of life imprisonment in Australia is complicated as there is no uniform national approach. Nor is there, as yet, any national agreement as to how or why a sentence of life imprisonment should be applied, in what circumstance and with what opportunities for release. As John Anderson (2012: 748) argues, ‘variances [in legislation] highlight ambiguities and uncertainties that stymie any principle application and operation of the sentence’ across Australia. As of 30 June 2013, 5 per cent (1,090 persons) of the sentenced prisoner population in Australia was serving a term of life imprisonment or other indeterminate sentence (Australian Bureau of Statistics 2013). Research suggests that the majority are serving a life sentence following a conviction for murder (Anderson 2012; Potas 1989). This is somewhat unsurprising given that for the offence of murder all Australian state and territory jurisdictions prescribe a maximum penalty of life imprisonment. However, the extent to which this is imposed varies across the jurisdictions. In Victoria and Tasmania, life imprisonment is the maximum penalty, which can be applied on a discretionary basis with due consideration given to the individual circumstances of the offender and the offence.2 In Queensland, South Australia (SA) and the Northern Territory (NT) murder attracts a mandatory life sentence regardless of the nature and circumstances of the offence or the offender.3 In New South Wales (NSW), where most offences of murder attract a discretionary life sentence, in a case where the victim is a police officer the offence attracts a mandatory life sentence.4 This variance in approaches to sentencing for murder means that the number of persons serving a life term for a homicide offence varies considerably across Australian state and territory jurisdictions, as illustrated in Table 3.1. To examine in detail one jurisdiction, between 1990 and 2003 this approach to sentencing for murder resulted in sentences for life being imposed on 51 convicted murderers (Public Defenders Office of NSW 2014).5 Details of these cases and the homicide offenders sentenced to life are presented in Table 3.2. Beyond the offence of murder, while comparable international jurisdictions largely confine the term of life imprisonment to homicide offences, in Australia other offences also attract a discretionary maximum term of life 2 

Murder (Crimes) Act 1958 (Vic); Murder (Criminal Code) 1924 (Tas). Criminal Code 1899, section 305 (Qld); Criminal Law Consolidation Act 1935, section 11 (SA); Criminal Code 1983 sections 157(1)–(2) (NT). 4  Crimes Amendment (Murder of Police Officers) Act 2011 (NSW). 5  This includes one case where the offender (originally sentenced to life imprisonment with a non-parole period of 25 years) has since been acquitted after spending over eight years in a maximum-security jail. See R v Tiwary (2006); Tiwary v R (2008); R v Tiwary (2009); Tiwary v R (2012). 3 

78  Kate Fitz-Gibbon Table 3.1:  Percentage of Prisoners with a Most Serious Offence of Homicide Serving an Indeterminate Sentence per State or Territory Jurisdiction as at 30 June 2013 Jurisdiction

Percentage of Homicide Prisoner Population Serving an Indeterminate Sentence

Australian Capital Territory

50

New South Wales

Less than 10

Northern Territory

Less than 10

Queensland

63

South Australia

Not reported

Tasmania

20

Victoria

Less than 10

Western Australia

72

National average

28

Source: Australian Bureau of Statistics (2013).

imprisonment, including incitement to murder (Victoria),6 trafficking in not less than a large commercial quantity of a drug of dependence (Victoria),7 accessory after the fact to murder (Queensland),8 sexual intercourse without consent (SA, Queensland, NT),9 serious heroin or cocaine trafficking offences (NSW)10 and aggravated sexual assault in company (NSW).11 Beyond these offences, at a time when international jurisdictions (particularly across Europe) are seeking to eradicate or at least minimise the use of life imprisonment, several Australian jurisdictions have sought to expand the range of offences for which a life sentence can be imposed. For example, in Queensland in July 2012 the state government introduced the Criminal Law (two strikes child sex offenders) Amendment Act 2012 (Qld), which provides that an adult convicted of a serious child sex offence,12 who has previously been convicted (while an adult) of another serious child offence must be sentenced to a mandatory term of life imprisonment.13

6 

Crimes Act 1958, section 3211(1)(ba)(i) (Vic). Drugs, Poisons and Controlled Substances Act 1981, section 71(a) (Vic). 8  Criminal Code 1899, section 307 (Qld). 9 Criminal Code 1899, section 349(1) (Qld); Criminal Law Consolidation Act 1935, ­section 48(1) (SA); Criminal Code, section 192(3) (NT). 10  Drug Misuse and Trafficking Act, 1986 (NSW). 11  Crimes Act 1900, section 61JA (NSW). 12 The legislation defines ‘serious child sex offence’ as rape, incest, maintaining a sexual relationship with a child and sodomy. 13  The legislation states that the offender is not eligible to apply for parole until they have served 20 years. 7 

Life without Parole in Australia 79 Table 3.2:  Characteristics for Life Sentenced Murder Offenders in NSW, November 1990–October 2013 Age range

19–69 years old

Gender

Male (n = 49) Female (n = 2)a

Number of offenders with no prior convictions (pre-murder conviction)

11b

Number of offenders sentenced to life for a single count of murder

18

Means of case resolutionc

Guilty plea (n = 16) Verdict (n = 35)

Defence appeal against sentence allowedd Crown appeal against sentence allowed

2 casese 3 casesf

Defence appeal against sentence dismissed Crown appeal against sentence dismissed

15 casesg 1 case

Source: Public Defenders Office of NSW (2014). a  See R v Knight (2001); R v BW & SW (No 3) (2009). b  In five cases the prior record of the offender was not stated. c  In one case—R v Leonard (1997)—the offender entered a plea of guilty to one count of murder and was subsequently convicted after trial of a second count of murder. This case is therefore counted in both categories for the purpose of these two categories. d  In NSW both the defence and the prosecution have the right to appeal against the sentence imposed. The role of the appellate courts in sentencing appeals is to consider evidence of legal error but not to apply their own discretion to impose a different sentence where a legal error has not occurred. As noted by Freiberg (2010: 206) ‘their role is not to substitute their discretion for that of the sentencing judge’. e  In these two cases the defence successfully appealed the original sentence imposed and the life sentence originally imposed was overturned in favour of a determinate sentence. f  In each of these three cases the offender was originally sentenced to a determinate sentence, however, following the Crown’s successful appeal against the manifest inadequacy of the sentence imposed, the offender was sentenced to life. See R v Harris (2000); R v Miles (2002); R v Hillsley (2006). g  In two of these cases the appeal was lodged against conviction, not the sentence.

At the Commonwealth level in November 2014, the Australian Government introduced new counter terrorism legislation that changed the maximum term of 10 to 15 years’ imprisonment for certain offences to a life sentence (see the Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014). These reforms were rushed through Parliament with limited scrutiny or consultation, on the justification of ensuring national security (Zifcak 2014). While this chapter does not seek to examine the specific merits of the recent reforms introduced in Queensland or at a Commonwealth level, it does raise the question of the appropriateness or efficacy of an increasing

80  Kate Fitz-Gibbon reliance on life imprisonment in Australia. This can be dangerous in terms of mission creep, as cautioned by English legal scholar Andrew Ashworth (2002: 2): We should remain aware of the danger that ‘extraordinary’ powers which are ­supported as necessary for ‘the fight against terrorism’ may come to be normalised by being applied progressively to other forms of serious crime.

From a critical perspective these recent reforms provide further justification for a reconsideration of how widely Australia should be willing to allow life sentencing to apply. As argued by Anderson (2012: 749), when life sentences are introduced for political ‘law and order’ purposes, too often ‘fundamental criminal justice principles, such as proportionality, equality and human dignity, are relegated or trumped in the political quest for electoral popularity’. Dissatisfaction with the current implementation of life sentencing legislation is evident at a state level, where members of the Supreme Court judiciary have criticised such terms. For example, in R v Petroff (1991, as cited in Anderson 2012: 758–59) Hunt J stated: Such a sentence deprives a prisoner of any fixed goal to aim for, it robs him of any incentive and it is personally destructive of his morale. The life sentence imposes intolerable burdens upon most prisoners because of their incarceration for an indeterminate period, and the result of that imposition has been an increased difficulty in their management by the prison authorities.

As is captured in this judicial excerpt, the viability of life sentences is particularly open to challenge where there is no opportunity provided for release or review. Such sentences can be challenged, not least because they deny the offender hope of release while simultaneously removing the possibility of rehabilitation and offering no finality to the punishment. III.  LIFE WITHOUT PAROLE IN AUSTRALIA

Most state and territory jurisdictions in Australia permit a sentence of LWOP to be imposed. Data revealing the number of prisoners currently serving life sentences without parole across Australia is difficult to access, however, various estimates have been made in recent research. For example: —— As of 2012 in Victoria, there were 12 prisoners currently serving LWOP (Robinson 2013). —— As of 2012, Tasmania had only imposed a LWOP sentence on one individual; the Port Arthur gunman, Martin Bryant (Anderson 2012). —— Between 1990 and 2006, approximately 30 persons were sentenced to LWOP in NSW (Anderson 2006).

Life without Parole in Australia 81 In line with sentencing principles in other comparable jurisdictions, sentences of LWOP are imposed across Australia with the understanding that, given the gravity of the offence, there is a need to prioritise denunciation, just punishment and community protection. In this respect, terms of life imprisonment have come to be associated with the ‘worst of the worst’: criminals who have been convicted of the most heinous crimes by community standards, such as mass murder, the killing of a child or the killing of a public figure. The erosion of an individual’s human rights when that person has committed a serious offence has been extensively documented through the work of Andrew Ashworth (2002, 2006), as has the curtailment of the presumption of innocence and the right to a fair trial for persons accused of terrorism, serious violence and drug offences. Explanations for sentences of LWOP are typically underpinned by the same justification—that the severity of the offence committed legitimises the breach of the individual offender’s human right to be free of inhuman or degrading treatment. Ashworth (2002: 1) has described this as the tension between ‘the promotion of human rights and the struggle against serious crime’. Within this punishment discourse the role and importance of the offender’s rehabilitation is largely ignored despite Australia ratifying the International Covenant on Civil and Political Rights (ICCPR), which, in Article 10(3), expressly provides that the essential aim of prison should be to provide prisoners with treatment aimed at their reformation and reintegration. While it is well established in sentencing research that the principles of punishment and deterrence are likely to emerge most strongly in cases of fatal violence, public opinion research conducted in the United Kingdom by Barry Mitchell and Julian Roberts (2012) revealed that, even in murder cases, there was some public support for rehabilitation to be considered as the most important principle in sentencing. To provide a sentence that allows for no meaningful possibility of future release is to disregard all aims of rehabilitation and reintegration, and to breach Australian obligations under the Covenant. In December 2014, the Australian High Court dismissed an application for appeal of a LWOP sentence imposed on convicted murderer Phuong Ngo. Ngo was convicted in 2001 for ordering the assassination of a political rival, Labour Party MP John Newman. In the original sentencing, the NSW Supreme Court imposed a sentence of LWOP, stating that only a life sentence without the possibility of parole would meet the ‘community’s interest in retribution, punishment, community protection and deterrence’ (R v Ngo 2001: para 26, per Dunford J). In making this judgment the court cited an earlier decision, R v Kalajzich (1999), where Chief Justice Hunt stated: The maximum penalty of penal servitude for life, meaning for the term of the prisoner’s natural life … is reserved for cases falling within the worst category

82  Kate Fitz-Gibbon of cases, but it is not reserved only for those cases where the prisoner is likely to remain a continuing danger to society for the rest of his life or for those cases where there is no chance of rehabilitation; the maximum may be appropriate where the level of culpability is so extreme that the community interest in retribution and punishment can only be met by such a punishment. (Cited in R v Ngo 2001: para 27.)14

While citing this judgment, the judge in Ngo (2001: para 43) also stated that he believed the sentence and the possibility of Ngo’s release should be open to future review, albeit following a ‘very long’ period of detention. The case was subsequently of concern to human rights advocates in Australia who argued: As Australians, we claim the moral high ground about our record on human rights. Yet when it comes to sentencing laws, NSW is now seriously out of step with the international community and its human rights initiatives. When the NSW Supreme Court sentences an offender to life without parole or the possibility of review, then arguably there has been a breach of Article 7 of the International Covenant on Civil and Political Rights … (Anderson, Wardhaugh and Matas 2013: 11)

Mirroring Article 3 of the ECHR, Article 7 of the ICCPR provides that ‘no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’. To date, however, such concerns have proved fruitless and the Ngo case provides an example of the prioritisation of public sentiment and the community interest in retribution taking precedence over the individual rights of the offender. Beyond NSW, and in the short time since the decision in Vinter, the Victorian Supreme Court has handed down terms of LWOP in at least two cases, with no debate arising over the possible breach of human rights (see DPP v Hunter 2013; The Queen v Leslie Camilleri 2013). While it is not the purpose of this chapter to debate the merits of the sentences imposed in these individual cases, it is interesting to note that, while the ECtHR has engaged in a debate on the extent to which LWOP sentences comply with modern human rights principles, the Victorian courts are yet to fully engage with the viability of such sentences from a rights-based standpoint. IV.  LIFE SENTENCES FOR JUVENILE OFFENDERS

Under current Australian state and territory legislation the imposition of LWOP sentences on juvenile offenders (under 17 years of age) is permitted 14 In explaining which cases would be likely to attract a sentence of life without parole Dunford J cited ‘killings which were sex related, thrill killings, killing involving extended suffering by the victim or extraordinary violence, multiple killings or cases where the prisoner is a continuing danger to the community’ (R v Ngo 2001: para 28).

Life without Parole in Australia 83 (O’Brien and Fitz-Gibbon 2016). For example, in NSW, section 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW) states the circumstances in which an offender should be sentenced to life imprisonment for murder and does not provide ‘a less or more stringent criterion dependent on age’ (R v Kanaan 2001: para 51, per James J). Given this, the maximum penalty of life imprisonment—with or without a non-parole period imposed—is available in cases involving a young person and can be applied at the discretion of the judge. In SA life imprisonment remains the mandatory sentence for murder, regardless of the age of the offender (Young Offenders Act 1993 (SA) section 29(4)). While homicide perpetrated by a child is a rare event (Chan and Payne 2013; Virueda and Payne 2010), as a result of this mandatory sentence, there are several examples in SA of children serving life sentences (see for example R v A, D 2011; R v B, TB; R v J-M, AM 2013). In some ways this punitive approach to maximum sentencing for child homicide offenders has been mitigated in SA by the scope permitted in setting the nonparole period—while adult offenders attract a mandatory minimum term of 20 years imprisonment, there is some discretion, if ‘special reasons’ exist, for a judge to impose a shorter non-parole period (Criminal Law (Sentencing) Act 1998, section 32A(2)(b)). While the Act does not list age as a ‘special reason’ to depart from the mandatory 20-year non-parole term,15 this section of the legislation has been utilised by judges in this jurisdiction to justify the imposition of a significantly shorter non-parole period in cases of children convicted of murder. For example, in R v A, D the SA Supreme Court of Criminal Appeal upheld the term of life imprisonment with a nonparole period of six years imposed on a child who was 14 years old at the time of the offence (R v A, D 2011). Beyond SA, in Queensland and NT life imprisonment for juvenile offenders is available to judges at their discretion and can be imposed with or without a non-parole period (Youth Justice Act 1992 (Qld), part 7(3)(b)(i)– (ii); Youth Justice Act 2014 (NT), section 82). Given the increasingly punitive approach to youth justice in Queensland (Hutchinson 2015; O’Leary 2014), the availability of LWOP for young offenders is highly concerning and illustrates the prioritisation of punishment and community protection over the welfare of the child and the sentencing principle of rehabilitation. Beyond the individual states and territories, at a Commonwealth level, terms of federal life imprisonment can also be imposed upon a juvenile offender. Troublingly, in cases where the court is satisfied that ‘the nature and circumstances of the offence or offences concerned’ and the ‘antecedents of the person’ require it, a term of LWOP can be imposed (Crimes Act 1914, section 19AB(3)).

15 

See Criminal Law (Sentencing) Act 1998, section 32A(3) for a list of the special reasons.

84  Kate Fitz-Gibbon From a human rights perspective, Australia is clearly out of step with international standards (O’Brien and Fitz-Gibbon 2016). As argued by Agyepong (2010: 84) in her examination of juvenile life without parole (JLWOP) in the United States: If the Court had used customary international law and international treaties like the Convention of the Rights of the Child (CRC), the Committee on the Elimination of Racial Discrimination (CERD), the Convention against Torture and other Cruel Inhuman or Degrading Treatment or Punishment (Convention against ­Torture), and the International Covenant on Civil and Political Rights (ICCPR) to evaluate juvenile LWOP, it would have reached the decision that LWOP sentences for all children are unconstitutional.

Australia has ratified each of these international standards and treaties, including the Convention on the Rights of the Child, which states that No child shall be subjected to torture or other cruel, inhuman, or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility or release shall be imposed for offences committed by persons below eighteen years of age. (Article 37 para a)

In this respect, and to borrow from Ashworth’s (2002: 82) examination of the integrity principle, Australia’s continued legislation of JLWOP undermines its claim to uphold human rights. The integrity principle includes that A system which proclaims its adherence to the human rights standards in the European Convention must not contain any rules, whether introduced by statute or judicial decision, which are not consistent with the protection of one of the human rights declared. This is an aspect of the integrity principle—that states cannot claim to respect human rights if they have laws that are incompatible with those rights.

By adopting this principle, the very existence of the legislation permitting JLWOP undermines Australia’s commitment to human rights, regardless of the extent of its operation—namely the number of juvenile prisoners currently serving LWOP. Australia stands apart from at least 135 countries worldwide that have ‘expressly rejected’ sentencing children to life imprisonment without parole (JLWOP) (Agyepong 2010; de la Vega and Leighton 2008). Of the jurisdictions that do permit terms of whole life imprisonment on children, the United States has the largest population of JLWOP prisoners. However, in the last 10 years, at least 10 American states have introduced legislation that either restricts or expressly bans the imposition of whole life sentences on juvenile offenders (Gottschalk 2012). At a federal level, the 2012 judgment of the United States Supreme Court in Miller v Alabama (2012) that held that mandatory sentences of LWOP were unconstitutional for juvenile offenders has further propelled the reduction of JLWOP sentencing in

Life without Parole in Australia 85 that country. This movement towards abolishing JLWOP has bought the law closer in line with the views of academics who have criticised JLWOP sentencing practices in the United States in recent decades (for example, Agyepong 2010; Kennedy 2014; Kloepfer 2012; Mallett 2013; Massey ­ 2006) and in Canada (see Carmichael and Burgos 2011; Ruddell and Gileno 2013). In stark contrast, legislation that permits JLWOP in the Australian context has received little academic critique or attention. In October 2014, however, a finding of the United Nations Human Rights Committee (UNHRC) that the life sentences imposed on two Australian juvenile offenders were in breach of several human rights obligations provided a timely opportunity to reconsider the injustice of LWOP sentences for juvenile offenders in Australia (UNHCR 2014). This finding confirms a fact that has often been overlooked in research on JLWOP: in Australia two persons currently serving whole life sentences were sentenced as juveniles. Significantly, this finding contradicts a statement often found in research in this field that the United States is the only jurisdiction worldwide that has current serving JLWOP prisoners. In September 1988 Bronson Blessington and Matthew Elliott, along with three other offenders,16 opportunistically abducted 20-year-old Janine Balding from a train station at knifepoint, following which they sexually assaulted and drowned her. At the time of the offence Blessington and E ­ lliott were 14 and 16 years old respectively and both were homeless.17 Given the gravity of the offence, it was decided that, despite their youth, ­Blessington and Elliott should be tried as adults. Both children pleaded not guilty to murder but were convicted following trial and sentenced in the NSW Supreme Court to LWOP for abduction, rape and murder (R v Jamieson, Elliott and Blessington 1992). In imposing this sentence, and in recognising their ‘extreme youth’, Newman J stated: In the case of the two youths, Elliott and Blessington, I find this to be a difficult task, difficult because of their extreme youth, difficult in terms of the principles of law which I have to apply. To sentence prisoners so young to a long term of imprisonment is, of course, a heavy task. However, the facts surrounding the commission of these crimes are so barbaric that I believe I have no alternative … So grave is the nature of this case that I recommend that none of the prisoners in the matter should ever be released. (Cited in R v Bronson Matthew Blessington 2006: para 5)

16  The three other offenders, two male and one female, were aged 22 years old (Stephen Wayne Jamieson), 15 years old (Wayne Lindsay Wilmot), and 15 years old (Carol Ann Arrow) at the time of the offence. Wilmot and Arrow were convicted of accessory to murder and sentenced to maximum terms of nine years and four months’ imprisonment and three years’ good behaviour bond (plus 19 months served) respectively. 17 Additionally, psychiatric evidence presented at the trial revealed that Blessington was illiterate and suggested that he had the mental capacity of a 9-to-10 year old.

86  Kate Fitz-Gibbon By 1999, following the introduction of the Crimes (Administration of Sentences) Act 1999 (NSW), the only opportunity that either offender had for release was if they were granted compassionate release, that is, if they were close to death or so physically incapacitated that they were no longer capable of committing a crime. In 2006 the NSW Criminal Court of Appeal stated that, given the legislative changes ‘the Applicants [Blessington and Elliott] will almost certainly never be released’ (R v Matthew James Elliott and Bronson Matthew Blessington 2006: 1). In over two decades since their original sentencing, Blessington and Elliott have submitted a number of appeals to the NSW Supreme Court of Appeal and the Australian High Court in an attempt to have their LWOP sentences overturned. Each of these attempts at the state level has been unsuccessful and in 2007 the appeal to the High Court of Australia, citing an administrative error, was also unsuccessful.18 The UNHRC (2014: 17) found that given the 1999 Act, the sentences imposed on both Elliot and Blessington provided no genuine chance of release and were thus in breach of the UN Covenant on Civil and Political Rights in that they violated their right against ‘cruel, inhuman or degrading treatment’. The UNHRC finding recognised that the retrospective sentencing legislation imposed not only removed the hope of release but also denied both the opportunity to rehabilitate and to have that rehabilitation recognised through release at a later date. For a jurisdiction to allow the removal of hope of release for a child sentenced to life, regardless of the offence committed, is quite clearly out of step with human rights obligations and international sentencing practice. The UNHRC (2014: 18) finding directed Australia to review its approach to JLWOP nationally. It stated: The State Party is also under an obligation to take steps to prevent similar violations in the future. In this connection, the State Party should review its legislation to ensure its conformity with the requirements of article 7, read together with articles 10, paragraph 3 and 24 of the Covenant without delay, and allow the authors to benefit from the reviewed legislation.

The Australian government was given 180 days to respond to the findings of the UNHRC. Shortly after the UNHRC’s finding, the NSW AttorneyGeneral Brad Hazzard provided a comment in the media. Hazzard stated: The (UN) has failed to acknowledge the human rights of Janine Balding and those of the community who are entitled to protection. I don’t see any sign that the Human Rights committee weighed up the barbaric end to her life at the hands of these individuals … Whilst I have considered the Human Rights Committee’s views in regard to the offenders, I am very disturbed it failed to weigh up the destruction of the human rights of Janine Balding nor did it give much regard to 18 

See O’Brien and Fitz-Gibbon (2016) for further analysis of these decisions.

Life without Parole in Australia 87 the necessity to give a clear message of deterrence to others who might consider this complete disregard of human rights of other individuals in the community acceptable. (Cited in Fife-Yeomans 2014: 2)

While disappointing for human rights advocates this response is unsurprising when read in the context of what Ashworth (2002) has conceptualised as ‘techniques of avoidance’—responses used by government bodies to justify circumventing human rights in the name of crime and justice policy. Ashworth (2002: 94–96) lists the tendency for government officials to justify a breach of an individual prisoner’s rights on the basis of developing a response to serious crime and ensuring the protection of the rights of the community. Both of which are implicit in the NSW Attorney-General’s response. While not as flippant, the Australian government’s response set out the existing sentencing legislation and did not agree to address the whole life prison terms imposed on Blessington and Elliott (Australian Government 2015, Response to Communication No 1968/2010). The response noted that the two offenders, Blessington and Elliott, would have the single opportunity to apply to the Supreme Court for parole after 30 years imprisonment and if denied, also have the Royal Prerogative of mercy available to them. The Blessington and Elliott case raises significant concerns that Australia is in breach of the UN Convention on the Rights of the Child—a breach which should not be overlooked on the basis that no Australian jurisdiction has sentenced a juvenile offender to LWOP since the sentencing of Blessington and Elliott. As long as legislation makes provision for such sentences there is the inherent danger that it will be utilised by the courts and that Australia’s disregard for the human rights of child offenders will be further extended. This is an unjustifiable risk. As argued by de la Vega and Leighton (2008: 983) there is no justification for the availability and use of this sentence for juveniles: The LWOP sentence condemns a child to die in prison … Imposing such a punishment on a child contradicts our modern understanding that children have enormous potential for growth and maturity as they move from youth to adulthood, and the widely held belief in the possibility of a child’s rehabilitation and redemption.

To disregard the rehabilitative potential of a juvenile offender is particularly concerning given the body of research that has dispelled the deterrent value of such sentences, as well as studies that question the level of public opinion and support for this approach (de la Vega and Leighton 2008; Kubiak and Allen 2011; Mitchell and Roberts 2013). Beyond deterrence and juvenile offenders specifically, there is also an emerging body of research that critiques the use of whole life sentences in any circumstances and equates such terms with the death penalty (see, for example, Berry 2015; Van Zyl Smit, Weatherby and Creighton 2014).

88  Kate Fitz-Gibbon V.  RELEASE FOR LIFE SENTENCE PRISONERS

While Australia has remained relatively silent on the imposition of life sentences, in various Australian jurisdictions the potential release of highprofile life sentence prisoners has engendered community concern, media debate and, in some cases, political response. Legislation and processes for determining eligibility for the release of life sentence prisoners differ across Australian state and territory jurisdictions, particularly where the offender is not granted a minimum non-parole period. For example, in NSW LWOP prisoners must serve their sentences for the remainder of their natural lives, subject to the exercise of the prerogative of mercy (as established in R v Harris 2000), while in NT, following the commencement of the Sentencing (Crime of Murder) and Parole Reform Act 2003,19 persons sentenced to mandatory life for murder can apply for parole after serving 20 or 25 years. The range of approaches taken across Australia point to the need for a review of release procedures to determine national best practice and the implications of divergent approaches. Of greatest concern here is the introduction of retrospective legislation that expressly provides that individuals who were originally sentenced to life with a non-parole period cannot be released due to their perceived ‘dangerousness’ and/or ongoing public sentiment. Examples of such legislation are the aforementioned 1999 NSW Act, which retrospectively removed the opportunity for review in the Blessington and Elliott case as well as a select group of other serious offenders, and the Victorian government’s response to applications for parole made by life prisoner, Julian Knight. In August 1987, 19-year-old Julian Knight embarked on a 45-minute massacre in Melbourne (Victoria) killing seven people and seriously wounding 19 others. At the time of the offence Knight had no prior criminal history and was described by the sentencing judge as ‘a highly intelligent, educated young man’ (R v Knight 1988: para 3, per Hampel J). Just prior to the offence, he had left the Royal Military College Duntroon where he had been an Army Cadet. He had enrolled at Duntroon in an attempt to follow in the footsteps of his adopted father, who had rejected him (Wadham 2014). Knight later claimed that he was ‘ill-treated and dealt with unjustly’ at the College (Wadham 2014). Knight pleaded guilty in 1988 to seven counts of murder and 46 counts of attempted murder. At the time, Victoria did not allow persons to be sentenced to LWOP and consequently Knight was sentenced to a maximum term of seven life sentences with a non-parole period of 27 years. In setting this non-parole period the sentencing judge

19  Prior to the 2003 Act, persons sentenced for murder were given a mandatory life sentence without the possibility of parole.

Life without Parole in Australia 89 stated his belief that, despite the heinous offences committed, Knight could be ­rehabilitated over time: Your prognosis is undoubtedly better than that of someone with brain damage because it appears that your condition is likely to improve as you mature over a period of years when you will cease to be a danger to the public. It was common ground among the doctors that in 20–25 years time the degree of change and therefore the degree of danger which you present can be assessed. In that sense it is thought that your prognosis is reasonable, particularly as you are bright and have a desire to better yourself. (R v Knight 1988: para 24, per Hampel J)

Knight’s non-parole period expired in May 2014. However, in February 2014 the then Victorian Premier, Denis Napthine, introduced new legislation into Parliament that would ensure that Knight would never be eligible for release. The resulting Corrections Amendment (Parole) Bill 2014 (Vic) gained bipartisan support and was rushed through Parliament. Introducing the new legislation, Napthine stated: This is guaranteeing that he [Knight] remains in jail until he’s dead, or so seriously incapacitated he’s no risk to other people in Victoria or indeed the community. (Cited in Wadham 2014: 1)

In many ways the 2014 Victorian Act mirrors the legislation introduced in NSW to prevent Blessington and Elliott, along with a select group of other serious violent offenders,20 from ever being released. It states that the Parole Board may only release Knight if it is determined that he: (i)

is in imminent danger of dying, or is seriously incapacitated, and as a result he no longer has the physical ability to do harm to any person; and (ii) has demonstrated that he does not pose a risk to the community; (iii) is further satisfied that, because of those circumstances, the making of the order is justified. The narrow terms under which Knight could be released infringe the right not to be tortured or subject to inhuman or degrading treatment as they arguably allow neither the hope nor the legitimate possibility of release. While this chapter does not seek to evaluate the merits of Knight’s application for release, it does emphasise the importance of providing the possibility of release for life sentence prisoners as well as the need to illuminate concerns surrounding retrospectively applied sentencing legislation. Importantly, providing the possibility of release for life-imprisoned persons should not be misconstrued as adopting a lenient approach, as

20 Section 154A of the 1999 NSW Act was also challenged in the High Court by Kevin Crump (Crump v New South Wales 2012). See Fitz-Gibbon and O’Brien 2016 for further discussion of the Crump case.

90  Kate Fitz-Gibbon argued by Ivan Potas (1989: 7), writing in the Australian context, over 20 years ago: Such demonstrable compassion should not be viewed as a sign of weakness but one of strength—a working symbol of a tolerant society which tempers justice with mercy and gives more than passing recognition to the cruelty and ultimate futility of imprisonment until death. It exemplifies a society which places a high premium on human life, including that of a condemned murderer, and accepts that over time, even the most violent offender may reform in character, attitude and behaviour.

Returning to the concept of mission creep, by blurring standards of acceptable practice, there is a concern that this legislation could be ­ extended to wider life prisoner populations or that individualised legislation could become the norm. As Gans (2014: 1) states, if allowed, this legislation opens the door for ‘a future Bayley bill, Farquharson bill, ­ ­Freeman bill, Hudson ….’.21 Beyond the importance of hope, the introduction of retrospective sentencing legislation is also problematic where that legislation has been designed specifically to target a single life prisoner and introduces special measures not otherwise applicable in that jurisdiction for prisoners seeking release. That this legislation could be introduced in Victoria is particularly concerning given that it is one of only two Australian state or territory jurisdictions that has introduced human rights legislation.22 The Charter of Human Rights and Responsibilities Act 2006 (Vic) was introduced to protect 20 rights for all Victorians, including the right to humane treatment when deprived of liberty (section 22). This section of the Act mirrors that contained in Article 3 of the ECHR, and yet the Victorian government’s legislative response to Knight’s eligibility for parole puts it in breach of not only its international obligations and standards, but also its own domestic law. It is worth noting that Clause 4 of the Corrections Amendment (Parole) Bill 2014 (Vic) states that the Charter of Human Rights and Responsibilities Act in Victoria does not apply to the ‘Julian Knight’ section of the Act.23 Consequently, while the Charter provides that each new piece of law in Victoria must be checked against the Charter and requires a Statement of Compatibility to tell Parliament how it relates to human rights, because the Knight legislation provides that human rights do not apply to that specific legislation, a Statement of Compatibility was not needed for that Act—a move allowed in ‘exceptional circumstances’ where Parliament can override the human rights declaration. 21 This refers to four high-profile male murderers sentenced to life imprisonment with a non-parole period in Victoria between 2010 and 2013: The Queen v Bayley (2013); R v ­Farquharson (2010); R v Freeman (2011). 22  In 2004 the Australian Capital Territory introduced the Human Rights Act 2004 (ACT), which was amended in 2005 by the Human Rights Commission Legislation Amendment Act 2005 (ACT). 23  Now enacted in Section 74AA of the Corrections Act 1986 (Vic).

Life without Parole in Australia 91 Beyond the human rights perspective, from a practical standpoint the extent to which a judge in sentencing should be expected to predict the likely future threat of a serious violent offender reoffending is questionable in itself. The impossibility of determining at sentencing whether a person will be a danger to the community in 20, 30 or 40 years is succinctly captured by Mitchell and Roberts (2012: 124), who argue: … predicting whether Offender X will be a threat to society 25 years hence is a notoriously difficult decision to make. If it is hard to predict with any certainty that an offender admitted to custody in 2020 will still constitute a threat to society in 2040, how much harder is it to predict the prisoner’s likely level of threat in 2090, after the prisoner has been confined for, say 70 years?

This becomes an even more difficult exercise in the cases of juvenile offenders who, by reason of their youth are still developing. As Mackenzie and Stobbs (2010: 133) argue: How is the court to assess, for example, the potential for a very young offender to rehabilitate in the context of cognitive and emotional development which is still somewhat embryonic?

Consequently, judges should not be expected to assess whether a juvenile offender is ever capable of sufficient rehabilitation. Whether examined from a human rights, proportionality or justice perspective, it is evident that Australia requires a system of automatic review for life sentence prisoners. In introducing a system of review for LWOP prisoners, Australian jurisdictions could take direction from the judgment of the Grand Chamber in Vinter, which provided that, for life sentence prisoners, there must be a review which allows the domestic authorities to consider whether any changes in the life prisoners are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds. (Cited in van Zyl Smit, Weatherby and Creighton 2014: 71)

The judgment proceeded to recommend that a formal review should occur no later than 25 years after the imposition of the life sentence, and should be followed by a system of periodic review. In the wake of the Grand Chamber’s judgment, van Zyl Smit, Weaterby and Creighton (2014: 77–79) proposed that a ‘Vinter review’ would allow for sentences imposed on life prisoners to be reviewed to determine if ongoing detention was justifiable, and that under this proposed system justification for the original life sentence imposed would also be reviewable at the later date. Beyond Vinter, there are several other international approaches (both in practice and proposed) that could be adopted in Australia, including the Canadian approach to late term review. At present, offenders sentenced to life imprisonment for first-degree murder in Canada are first considered for

92  Kate Fitz-Gibbon parole after 25 years (although there is proposed legislation currently under consideration that would extend this to 35 years; see Fine 2015). This system of review was introduced in 2011 following the repeal of the ‘faint hope’ clause (section 745.6 of the Criminal Code), which provided that life sentence prisoners could apply for a jury review of their parole eligibility after 15 years’ imprisonment (see Roberts 2002; 2009 for further explanation of the Canadian review approach). While the viability of applying the proposed ‘Vinter review’ or either the current or previous Canadian approaches to the Australian context would need to be carefully considered, the very existence of current and proposed models provides a starting point for a reconsideration in Australia of mechanisms of review of release for life sentence prisoners. VI.  THE NEED FOR REVIEW AND REFORM

While at present there appears to be little political will or public momentum to abolish the sentencing option of LWOP in Australia, the 2013 Vinter decision of the ECtHR as well as ongoing political debate surrounding life sentences in the United States and Canada should encourage A ­ ustralian state and territory jurisdictions to reconsider the viability of this sentencing option. The use of LWOP in cases involving children undoubtedly breaches numerous human rights standards and international obligations. The injustice of JLWOP has long been recognised throughout Europe and more recently in the United States. That Australia remains one of few jurisdictions to impose this indeterminate sentence on juveniles undermines the integrity of Australian criminal justice systems and their approach to youth justice. The Blessington and Elliott, Ngo and Knight cases highlight key issues arising across Australian jurisdictions in the use of life imprisonment. While these are individual examples, the cases demonstrate the current punitive climate and the extent to which the human rights of life sentence prisoners continue to be disregarded in the formulation and implementation of Australian legislation on life imprisonment. While to date the nation’s use of life imprisonment has received relatively little attention, this chapter demonstrates why attention must be paid and why review and reform is so urgently needed. A national review of LWOP sentencing in Australia should seek to implement two key reforms to remedy Australia’s violation of international human right standards: first, the introduction of legislation that expressly bans a sentence of LWOP from being imposed on children, and secondly, the introduction of a review mechanism for all life sentence prisoners. Both reforms are necessary to bring Australia in line with international human rights standards and the European sentencing debate.

Life without Parole in Australia 93 REFERENCES

Agyepong, T (2010) ‘Children Left behind Bars: Sullivan, Graham, and J­uvenile Life Without Parole Sentences’ Northwestern Journal of ­International Human Rights, 9(1), 83–102. Anderson, J (1999) ‘From Marble to Mud: The Punishment of Life Imprisonment’ Paper presented at the History of Crime, Policing and P ­ unishment Conference: Australian Institute of Criminology, Canberra (Australia), 9–10 December. ––— (2006) ‘ “Indefinite, Inhumane, Inequitable”—The Principle of Equal Application of the Law and the Natural Life Sentence for Murder: A Reform Agenda’ UNSW Law Journal, 29(3), 139–72. ––— (2012) ‘The Label of Life Imprisonment in Australia: A Principled or Populist Approach to an Ultimate Sentence’ UNSW Law Journal, 35(3), 747–78. Anderson, J, Wardhaugh, F and Matas, D (2013) ‘Parole … Eventually’ The Sydney Morning Herald, 28 December. Appleton, C and Grøver, B (2007) ‘The Pros and Cons of Life without Parole’ British Journal of Criminology, 47, 597–615. Ashworth, A (2002) Human Rights, Serious Crime and Criminal ­Procedure. The Hamlyn Lectures (London: Sweet & Maxwell). ––— (2006) ‘Four Threats to the Presumption of Innocence’ The International Journal of Evidence and Proof, 10, 241–79. Australian Bureau of Statistics (2013) Prisoners in Australia, 2013: ­Sentenced Prisoners (Canberra: Australian Bureau of Statistics). Australian Government (2015) Response of Australia to the Views of the Human Rights Committee in Communication No. 1968/2010 (Blessington and Elliot v Australia). Berry, WW (2015) ‘Life-with-Hope Sentencing: The Argument for Replacing Life Without Parole Sentences with Presumptive Life Sentences’ Ohio State Law Journal. 76, 1051–1085. Bild, J (2015) ‘The Whole-Life Sentence in England and Wales’ The ­Cambridge Law Journal, 74(1), 1–4. Carmichael, JT and Burgos, G (2011) ‘Sentencing Juvenile Offenders to Life in Prison: The Political Sociology of Juvenile Punishment’ American Journal of Criminal Justice, 37, 602–29. Chan, A and Payne, J (2013) ‘Homicide in Australia: 2008–09 to 2009–10: National Homicide Monitoring Program Annual Report’ ­Monitoring Report, no 21 (Canberra: Australian Institute of Criminology). De la Vega, C and Leighton, M (2008) ‘Sentencing Our Children to Die in Prison: Global Law and Practice’ University of San Francisco Law Review, 42, 983–1044. Easton, S and Piper, C (2012) Sentencing and Punishment: The Quest for Justice, 3rd edn (Oxford: Oxford University Press).

94  Kate Fitz-Gibbon Fife-Yeomans, J (2014) ‘NSW will defy UN on killers’ The Daily ­Telegraph, 25 November. Fine, S (2015) ‘Ottawa to introduce life sentences without parole under new legislation’ The Globe and Mail, 4 March. Fitz-Gibbon, K and O’Brien, W (2016) ‘No prospect of release: Kevin Crump and the human rights implications of life imprisonment’ The ­Conversation, 8 February, available online at https://theconversation. com/no-prospect-of-release-kevin-crump-and-the-human-rights-implications-of-life-imprisonment-51435 Gans, J (2014) ‘News: one-person parole law enacted in Victoria’ ­Opinion on High, 27 March, available online at http://blogs.unimelb.edu.au/ opinionsonhigh/2014/03/27/news-one-person-parole-law-enacted-invictoria/ (accessed 6 July 2015). Gottschalk, M (2012) ‘No Way Out? Life Sentences and the Politics of Penal Reform’ in CJ Ogletree and A Sarat (eds), Life without parole: A ­ merica’s new death penalty (New York: New York University Press). Hutchinson, T (2015) ‘“A Slap on the Wrist”: The Conservative Agenda in Queensland, Australia’ Youth Justice, 15(2), 134–47. Kennedy, M (2014) ‘The End of Mandatory Juvenile Life Without Parole’ Criminal Justice Policy Review, 25(5), 553–78. Kloepfer, A (2012) ‘Denial of Hope: Sentencing Children to Life in Prison Without the Possibility of Parole’ Journal of Civil Rights and Economic Development, 26(2), 387–413. Kubiak, SP and Allen, T (2011) ‘Public Opinion Regarding Juvenile Life Without Parole in Consecutive Statewide Surveys’ Crime & Delinquency, 57(4), 495–515. Mackenzie, G and Stobbs, N (2010) Principles of Sentencing (Sydney: The Federation Press). Mallett, CA (2013) ‘Juvenile Life without the Possibility of Parole: ­Constitutional But Complicated’ Social Work Faculty Publications, Paper 11, 743–52 (Cleveland: Cleveland State University). Massey, HJ (2006) ‘Disposing of Children: The Eighth Amendment and Juvenile Life without Parole after Roper’ Boston College Law Review 47(5) 1083–118. Mitchell, B and Roberts, J (2012) Exploring the Mandatory Life Sentence for Murder (Oxford: Hart Publishing). ––— (2013) ‘Bring Principles and Fairness to the Sentencing of Murder’ Criminal Law Forum, 24, 501–26. O’Brien, W and Fitz-Gibbon, K (2016, forthcoming) “Cemented in their cells”: A human rights analysis of Blessington, Elliott and the life imprisonment of children in New South Wales’ Australian Journal of Human Rights. O’Leary, J (2014) ‘Out of Step and Out of Touch: Queensland’s 2014 Youth Justice Amendments’ Current Issues in Criminal Justice’ 26(2), 159–75.

Life without Parole in Australia 95 Potas, I (1989) ‘Life Imprisonment in Australia’ Trends and Issues in Crime and Criminal Justice, no 19 (Canberra: Australian Institute of Criminology). Public Defenders Office New South Wales (2014) Murder—Life Summary. Available online at www.publicdefenders.nsw.gov.au/Pages/public_ defenders_research/Sentencing%20Tables/public_defenders_murder_life_ summary.aspx (accessed 5 July 2016. Roberts, J (2002) ‘Determining parole eligibility dates for life prisoners: Lessons from jury hearings in Canada’ Punishment and Society, 4, 103–14. ––— (2009) ‘“Faint hope” in the firing line: Repeal of section 745.6?’ Canadian Journal of Criminology and Criminal Justice, 51(4), 537–45. Robinson, E (2013) Case notes: Irreducible life sentence breaches article 3 of the European Convention 9th July (Melbourne: Human Rights Law Centre). Ruddell, R and Gileno, J (2013) ‘Lifers admitted as juveniles in the ­Canadian prison population’ Youth Justice, 13(3), 234–248. Stone, N (2008) A companion guide to life sentences 2nd edn (Kent, UK: Shaw and Sons). Travis, A (2015) ‘European judges uphold British courts’ right to impose “whole life” tariffs’ Guardian, 3 February. United Nations Human Rights Committee (2014) Views of the Human Rights Committee under article 5, paragraph 4 of the Optional Protocol to the International Covenant on Civil and Political Rights (112th session) concerning Communication No. 1968/2010. Van Zyl Smit, D (1999) ‘Life Imprisonment as the Ultimate Penalty in International Law: A Human Rights Perspective’ Criminal Law Forum, 9, 5–54. ––— (2012) ‘Community Sanctions and European Human Rights Law’ in L Zedner and JV Roberts (eds), Principles and Values in Criminal Law and Criminal Justice: Essays in Honour of Andrew Ashworth (Oxford: Oxford University Press). Van Zyl Smit, D and Ashworth, A (2004) ‘Disproportionate Sentences as Human Rights Violations’ Modern Law Review, 67, 541–60. Van Zyl Smit, D, Weatherby, P and Creighton, S (2014) ‘Whole Life ­Sentences and the Tide of European Human Rights Jurisprudence: What is to Be Done?’ Human Rights Law Review, 14, 59–84. Virueda, M and Payne, J (2010) ‘Homicide in Australia: 2007–08: National Homicide Monitoring Program Annual Report’ Monitoring Report, no 13 (Canberra: Australian Institute of Criminology). Wadham, B (2014) ‘The ADF and Julian Knight: A Lesson on Defence’s Culture Reform’ The Conversation, 1 March. Zifcak, S (2014) ‘Proportionality lost, Australia’s new counter-terrorism laws’ Arena Magazine. Available online at http://arena.org.au/­proportionalitylost-australias-new-counter-terrorism-laws-by-spencer-zifcak/ (accessed 5 June 2015).

96  Kate Fitz-Gibbon TABLE OF CASES

Domestic Cases Crump v New South Wales [2012] HCA 20 (4 May 2012) DPP v Hunter [2013] VSC 440 (21 August 2013) R v A, D [2011] SASCFC 5 R v B, TB; R v J-M, AM [2013] SASCFC R v BW & SW (No 3) [2009] NSWSC 1043 R v Bronson Matthew Blessington [2005] NSWSC 340 R v Bronson Matthew Blessington [2006] NSWCCA 305 R v Farquharson [2010] VSC 462 (15 October 2010) R v Freeman [2011] VSC 139 (11 April 2011) R v Harris (2000) NSWLR 409 R v Jamieson, Elliott and Blessington [1992] R v Kalajzich (1997) 94 A Crim R 41 R v Kanaan [2001] NSWSC 959 R v Knight 1988 VSC 530 R v Knight [2001] NSWSC 1011 R v Matthew James Elliott and Bronson Matthew Blessington [2006] NSWCCA 305 R v Ngo [2001] NSWSC 1021 (14 November 2001) R v Petroff [1991] NSWSC (Unreported) R v Tiwary [2006] NSWSC 1156 R v Tiwary [2009] NSWSC 1415 Tiwary v R [2008] NSWCCA 319 Tiwary v R [2012] NSWCCA 193 The Queen v Bayley [2013] VSC 313 (19 June 2013) The Queen v Leslie Camilleri [2013] VSC 676 (5 December 2013) European Court of Human Rights Hussain v United Kingdom App no 21928/93 (21 February 1996) Stafford v United Kingdom App no 46295/99 (28 May 2002) Vinter and Others v United Kingdom App nos 66069/09, 3896/10 and 130/10 (9 July 2013) USA Cases Miller v Alabama 2012 No 10-9646 (25 June 2012), United States Supreme Court

4 Life Imprisonment and Human Rights in Uganda JAMIL DDAMULIRA MUJUZI*

I. INTRODUCTION

L

IFE IMPRISONMENT IN Uganda should be seen against the background of the human rights framework of the country, as well as the fact that the sentence of death is the ultimate penalty there. The Constitution of Uganda prohibits cruel, inhuman and degrading treatment or punishment.1 Uganda is also a state party to international and regional human rights instruments which prohibit cruel, inhuman and degrading treatment. These include the International Covenant on Civil and Political Rights (Article 7), the United Nations Convention against Torture, and the African Charter on Human and Peoples’ Rights (Article 5). The death penalty is still a competent sentence in Uganda and courts still have the discretion to impose it on those convicted of serious offences (for example, Mugabe v Uganda 2014 for murder). There are over 200 prisoners on death row in Ugandan prisons (Kasozi 2014; Kwesiga 2013). Before 2009 the death penalty was mandatory for serious offences, such as murder, treason, robbery with aggravating circumstances and terrorism. In 2009, in the case of Attorney General v Susan Kigula and 417 others, the Ugandan Supreme Court held that the mandatory death penalty was unconstitutional as it, inter alia, violated the right to a fair trial as the offender could not make submissions to the court in order for it to impose an appropriate sentence. The Supreme Court ordered that those offenders whose mandatory death sentences were not subject to further appeals, but who had not yet

*  This chapter is based on the research supported partly by the National Research Foundation of South Africa (Grant specific unique reference number (UID) 86004). The author acknowledges that opinions, findings and conclusions or recommendations expressed in this chapter are his own and that the NRF accepts no liability in this regard. 1  Article 24 provides that ‘[n]o person shall be subjected to any form of torture or cruel, inhuman or degrading treatment or punishment’.

98  Jamil Ddamulira Mujuzi been executed or had their sentences commuted, should have their sentences changed to life imprisonment without remission. This Supreme Court ruling has impacted on the sentence of life imprisonment in different ways. Most significantly there was a dramatic increase in the number of offenders sentenced to life imprisonment. In May 2009 there were 43 offenders serving life sentences in Uganda (Mujuzi 2009a: 9). By February 2015, the number of offenders with life sentences stood at 209. Of these, 92 had been sentenced to ‘imprisonment for life’, that is, whole life imprisonment, and the rest to life imprisonment, that is, life sentences that will be remitted after a minimum of 20 years.2 Most of the offenders serving these two sentences were sentenced after 21 January 2009, which was when the Supreme Court held that the mandatory death penalty was unconstitutional. In addition, since the abolition of mandatory death sentences, there has been an increase in the number of offenders sentenced to lengthy fixedterm prison sentences, ranging between 21 and 99 years. This chapter highlights key developments in the law and practice on life imprisonment and human rights in Uganda and, where possible, places them in a wider African context. It focuses on the following issues: the release of offenders sentenced to life imprisonment; commuted death sentences; time spent in detention awaiting trial; the Sentencing Guidelines and life imprisonment; life imprisonment for children; the right to legal representation; multiple (life) sentences; the purposes of punishment; and de facto life imprisonment. The chapter concludes that the developments in life imprisonment in Uganda raise important human rights concerns and makes some suggestions about how they can be addressed by drawing on reforms that have been introduced elsewhere in Africa. II.  THE RELEASE OF OFFENDERS SENTENCED TO LIFE IMPRISONMENT

One of the questions that remained unanswered after mandatory death sentences had been struck down in 2009 was what life imprisonment really meant in Uganda. Before that date it was widely assumed that the answer was to be found in Ugandan prison law. Section 86 of the 2006 Prisons Act provided (and still provides) that: (1) The Commissioner General may recommend to the Minister responsible for justice to advise the President under article 121(4)(d) of the Constitution to grant a further remission on special grounds. (2) The Commissioner General may restore forfeited remission in whole or in part. 2  Statistics obtained by the author via personal communication from the Ugandan Commissioner General of Prisons, 5 February 2015 (on file with the author).

Life Imprisonment and Human Rights in Uganda 99 (3) For the purpose of calculating remission of sentence, imprisonment for life shall be deemed to be twenty years’ imprisonment.

The drafting history of the Prisons Act shows that section 86 was passed without debate (Hansard 2006). This could be an indication that none of the legislators present had a problem with the meaning of life imprisonment as provided for under that section. After 2009, when the Supreme Court had held that the death penalty was discretionary, there was a difference of opinion on what the sentence of life imprisonment in Uganda should mean. Some judges, including the then Chief Justice, were of the view that those sentenced to life imprisonment should be imprisoned for the rest of their lives, notwithstanding the fact that the Prisons Act provided that life imprisonment meant 20 years for the purpose of remission (Mujuzi 2013). As a result, in Tigo Stephen v Uganda (2011) the Ugandan Supreme Court, the highest court in the country, considered the question directly. It came to the conclusion that life imprisonment should mean imprisonment for the offender’s natural life. The Court explained: [T]he [relevant provisions of the] Prisons Act have sometimes been cited as authority for holding that imprisonment for life in Uganda means a sentence of imprisonment for twenty years. However, there is no basis for so holding. The Prisons Act and Rules made there under are meant to assist the Prison authorities in administering prisons and in particular sentences imposed by the Courts. The Prisons Act does not prescribe sentences to be imposed for defined offences. The sentences are contained in the Penal Code and other Penal Statutes and the sentencing powers of Courts are contained in the Magistrates Courts Act and the Trial on Indictment Act, and other Acts prescribing jurisdiction of Courts. (Tigo Stephen v Uganda 2011: 6–7)

The Court noted that the sentence of life imprisonment had different ­meanings in different countries. Against this background it concluded that [L]ife imprisonment means imprisonment for the natural life term of a convict, though the actual period of imprisonment may stand reduced on account of remissions earned. We note that in many cases in Uganda, Courts have imposed specific terms of imprisonment beyond twenty years instead of imposing life imprisonment. It would be absurd if these terms of imprisonment were held to be more severe than life imprisonment. In the present case, the trial Judge imposed a sentence of imprisonment for life yet she qualified the sentence by limiting it to twenty years. In our view, the sentence was vague. The Court of Appeal confirmed the sentence of life imprisonment without clearing the vagueness. However, we think that this error did not make the sentence illegal. We are satisfied that the trial Judge intended to impose a sentence of imprisonment for twenty years. We therefore, find that the error made by the Court of Appeal did not occasion any miscarriage of justice. We uphold the sentence of twenty years imprisonment. (Tigo Stephen v Uganda 2011: 11)

100  Jamil Ddamulira Mujuzi A difficulty with this ruling is that it does not fit easily with the provisions of the Ugandan Prisons Act about calculating remission for life prisoners. The Ugandan Act stands in contrast to the Kenyan Prisons Act,3 section 46(1)(ii) of which provides that ‘in no case shall any remission be granted to a prisoner sentenced to imprisonment for life’. Some high court judges in Kenya have held, on the basis of that section, that life imprisonment means ‘imprisonment for the natural life of the prisoner without parole or prospect of being released after serving a minimum period of time’ (see, for example, Republic v Milton Kabulit & 6 others 2012; Fred Michael Bwayo v Republic 2009). However, others have chosen not to express their view on the issue (see, for example, Jackson Maina Wangui & another v Republic 2014). The situation in Uganda is different. As mentioned earlier, section 86(3) of the Ugandan Prisons Act provides that ‘[f]or the purpose of calculating remission of sentence, imprisonment for life shall be deemed to be twenty years’ imprisonment’. In spite of the judgment of the Supreme Court in Tigo Stephen, the Court of Appeal has continued to hold that life imprisonment does not mean imprisonment for the offender’s natural life. In the view of the Court of Appeal life imprisonment still means 20 years’ imprisonment (see, eg, Ainobushobozi v Uganda 2014; Kisembo v Uganda 2014; Ninsiima v Uganda 2014; and Opolot Justine and another v Uganda 2014). Apart from the fact that this is against the doctrine of precedent (Springs International Hotel Ltd v Hotel Diplomate Ltd & Anor 2014), Uganda being a common law country, it has also created considerable confusion with regards to the meaning of life imprisonment. The fundamental problem with the support expressed by the courts for life imprisonment with no prospect of remission is that it does not consider whether such a sentence may be so harsh as to be unacceptable in human rights terms (Mujuzi 2008). The Ugandan Constitution and the international human rights treaties ratified by Uganda prohibit inhuman and degrading punishment. Jurisprudence from African countries such as South Africa (S v Bull and another 2001) and Namibia (S v Tcoeib 1996) is to the effect that a life sentence without the possibility of parole is degrading and inhuman. International human rights bodies such as the Committee against Torture have called upon State Parties to the United Nations Convention against Torture to abolish life imprisonment without the possibility of release (UN Committee against Torture 2004: para 6(h); 2014: para 12). It is not only in Africa where the view is held that life imprisonment without a prospect of release is problematic. Although called upon by the ­Netherlands to consider life imprisonment without parole as one of the

3 

Cap 90 of the Laws of Kenya.

Life Imprisonment and Human Rights in Uganda 101 sentences for heinous crimes and one of the ways to reduce the number of offenders sentenced to death, Japan has taken the position that With regard to imprisonment without parole, Japan considered that this may be a cruel and problematic system that has the possibility to destroy the personal character of prisoners; therefore the introduction of such a system needs to be considered very carefully. (UN Human Rights Council 2008: para 59)

III.  COMMUTED DEATH SENTENCES

As has been seen, Uganda retains the death penalty. This is significant, also for life imprisonment, for further uncertainty about the meaning of life sentences has arisen in the context of the commutation of death sentences. As mentioned in the Introduction above, when the Supreme Court held that the mandatory death penalty was unconstitutional, it intervened in the commutation process. The precise order it made was as follows: For those respondents whose sentences were already confirmed by the highest Court, their petitions for mercy under Article 121 of the Constitution must be processed and determined within three years from the date of confirmation of the sentence. Where after three years no decision has been made by the Executive, the death sentence shall be deemed commuted to imprisonment for life without remission. (Attorney General v Susan Kigula & 417 others 2009: 63–64)

This part of the ruling caused some confusion regarding the date on which the offenders were to be released (Mujuzi 2009b: 578). This was so because the prison rules were silent on the issue of prisoners whose death sentences had been commuted to life imprisonment. The effect of the Supreme Court order was that it created two categories of offenders serving life imprisonment. The first category was that of offenders who had originally been sentenced to life imprisonment. Their sentences were governed by section 86 of the Prisons Act (or section 46 of the repealed Prisons Act whose wording was identical to that of section 86 of the 1996 Act). This meant that they were apparently still serving a term of life imprisonment with remission. They qualified for release after serving 20 years. The second category was that of prisoners whose applications for mercy had not been finalised within three years. All these had their death sentences commuted to life imprisonment without remission—that is, imprisonment for the rest of their lives. It is questionable whether this was the best approach to the resentencing of those who had been condemned to death in terms of the mandatory death penalty that the Supreme Court had struck down. This ‘one size fits all’ approach ignores the fact that each prisoner is different.4 One 4  In Kenya the President has also commuted all death sentences to life imprisonment when exercising his prerogative of mercy; see Joseph Njuguna Mwaura & 2 others v Republic (2013); Republic v Dickson Mwangi Munene & Another (2011).

102  Jamil Ddamulira Mujuzi would have expected the Court to order that each prisoner’s case should be assessed individually by the High Court to determine the appropriate sentence depending on factors, such as, the seriousness of the offence, the personal circumstances of the offender and the interests of society. This is an approach that was followed in South Africa when the death penalty was declared unconstitutional by its Constitutional Court (Mujuzi 2009c). The result was that South African courts imposed new sentences taking into account factors, such as, the personal circumstances of the offender and the seriousness of the offence(s) of which he had been convicted (Mujuzi 2009c). The new Ugandan Prison Regulations of 2012 address the issue of death sentences commuted to life imprisonment. Rule 99 provides that: (4) Where a death sentence is commuted to a sentence of life imprisonment the sentence shall, for the purposes of the remission system, be considered as, a sentence passed by court. (5) Where a death sentence is commuted to a sentence of life imprisonment, the sentence shall for the purposes of remission be deemed to have commenced at the date the sentence of death was passed.

Under Rule 99(4), the new sentence is, for the purpose of remission, considered as one imposed by the court and not by the executive which has commuted the sentence. Under Rule 99(5), when a death sentence is commuted to life imprisonment, the sentence of life imprisonment is deemed to have been passed on the day the death sentence was passed. Further complexity is added by another aspect of the order that the Supreme Court made in its judgment striking down mandatory death sentences: For those respondents whose sentences arose from the mandatory sentence provisions and are still pending before an Appellate Court, their cases shall be remitted to the High Court for them to be heard only on mitigation of sentence, and the High Court may pass such a sentence as it deems fit under the law. (Attorney General v Susan Kigula & 417 Others 2009: 64)

This part of the judgment ensured that there was an individualised approach to sentencing. The High Court had the discretion to determine the sentence to impose on the offender after submissions ‘on mitigation of sentence’ had been made by the offender. This may have been interpreted to mean that the prosecution did not have a right to make submissions in aggravation of sentence. However, when the High Court considered these cases, the prosecution made submissions in aggravation and the defence made submissions in mitigation; for example, in Uganda v Charles Sekamatte (2012) the offender’s death sentence was replaced with one of 32 years’ imprisonment, a sentence which was upheld on appeal in 2015 as not harsh or excessive or illegal (Sekamatte v Uganda 2015). However, courts have often upheld

Life Imprisonment and Human Rights in Uganda 103 shorter fixed-term sentences for persons convicted of what had been capital offences,5 thus adding further uncertainty to what should be regarded as proportionate sentences under these circumstances. IV.  LIFE IMPRISONMENT AND TIME SPENT IN DETENTION AWAITING TRIAL

Article 23(8) of the Constitution of Uganda provides: Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he or she spends in lawful custody in respect of the offence before the completion of his or her trial shall be taken into account in imposing the term of imprisonment.

In numerous judgments, courts in Uganda have held that a judicial officer has a duty to ensure that the time an offender has spent on remand is factored into the sentence (see, for example, Naturinda Tamson v Uganda 2015; Otema v Uganda 2015; Uganda v Ocitti 2015; and Uganda v Ojara 2015). If life imprisonment means imprisonment for the whole natural life of the offender, the question that has to be answered is whether, and if so how, Article 23(8) is applicable in cases where an offender has been sentenced to life imprisonment. The Supreme Court dealt with this question in the case of Bukenya Joseph v Uganda (2013). The High Court had convicted the appellant, a 70-year-old man, of defiling a six-year-old girl and sentenced him to life imprisonment. His appeal against sentence to the Court of Appeal had been dismissed, holding, inter alia, that the offender deserved a life sentence because of the heinous nature of the offence that he had committed. On appeal to the Supreme Court, his lawyer argued (at 4), inter alia, that the sentence of life imprisonment was harsh and excessive and that ‘the sentence of life imprisonment is illegal and unconstitutional’. The Supreme Court held: Clearly the Court of Appeal did not consider the remand period. In our opinion the Court of Appeal erred in not considering the failure by the trial Judge to comply with Article 23(8). This Court has on many occasions in its many decisions highlighted the need for trial courts to comply with the provisions of Clause (8) of Article 23 of the Constitution … Taking the remand period into account is clearly a mandatory requirement. As observed above, this Court has on many occasions construed this clause to mean in effect that the period which an accused person spends in lawful custody before completion of the trial, should be taken into account specifically along with other relevant factors before the court pronounces the term to be served … It does not mean that taking the remand period 5 In Tumwesigye v Uganda (2014) the appellant’s 32-year sentence for murder was set aside and replaced by one of 20 years’ imprisonment.

104  Jamil Ddamulira Mujuzi into account should be done mathematically such as subtracting that period from the sentence the Court would give. But it must be considered and that consideration must be noted in the judgment. The sentiments expressed by the learned trial judge are no doubt reasonable but the law must be followed. (Bukenya Joseph v Uganda 2012: 6)

The Supreme Court appears to suggest that even in cases where an offender is to be sentenced to life imprisonment, the period spent on remand should be considered, otherwise the sentence imposed on him would be contrary to Article 23(8) of the Constitution. If the Supreme Court’s understanding of life imprisonment is that the offender shall be imprisoned for the rest of his life, it is debatable whether Article 23(8) of the Constitution is applicable to those sentenced to life imprisonment. In Kansiime Brazio & Anor v Uganda (2014) the High Court convicted the appellants of murder and sentenced them to life imprisonment. On appeal against their sentences, they argued that the High Court had not considered the time that they had spent awaiting trial in determining the appropriate sentence. The Court of Appeal held: We are satisfied that in imposing the sentence of imprisonment for life, the learned trial Judge took all the mitigating factors into account including the period the appellants had spent on remand, in accordance with the provision of Article 23(8) of the Constitution. However, we note that the appellants were convicted on 24th February 2008. This was before the Supreme Court pronounced itself in the case of Tigo Stephen vs Uganda … on the 10th May 2011. In 2008, before the above decision of the Supreme Court, the thinking and belief at that time was that imprisonment for life or life imprisonment meant 20 years in prison. It is our view that when the learned trial Judge sentenced both appellants to a term of imprisonment for life he had in mind 20 years in prison and not imprisonment for the rest of their lives. (Kansiime Brazio & Anor v Uganda 2014: 12. Emphasis removed)

It is against that background that the Court of Appeal reduced the offenders’ sentence from life imprisonment to 20 years’ imprisonment. In Friday Yasin v Uganda (2014) in which the High Court convicted the appellant of defilement and sentenced him to 19 years’ imprisonment, the Court of Appeal, in reducing the sentence to 15 years’ imprisonment, held: [T]his was a very young man who in effect received a sentence of life imprisonment without being fully credited with the almost 5 years he had spent in pre-trial detention much as the judge said he had taken it into account.’ (Friday Yasin v Uganda 2014: para 11).

It is therefore evident that the time an offender has spent in custody awaiting trial should not just be mentioned by the presiding officer. The individual should actually ensure that it has been reflected in the sentence imposed. For example, in Uganda v Muwonge George 2009, the accused was convicted of murder and in imposing the sentence of life imprisonment on him, the

Life Imprisonment and Human Rights in Uganda 105 Court held that ‘[t]he convict is a first offender who has been on remand for close to four years. The maximum sentence of this offence is death. I shall take the period he has been on remand into account and he is sentenced to life imprisonment. (Uganda v Muwonge 2009: 9) This jurisprudence shows that an offender sentenced to life imprisonment has a right to have the time spent on remand considered in determining the sentence imposed on him. However, precisely what role this should play in the eventual release of lifers convicted, after the Supreme Court confirmed in 2009 that life sentences were meant to be implemented for the natural life of an offender, remains unclear. V.  THE SENTENCING GUIDELINES AND LIFE IMPRISONMENT

The Sentencing Guidelines of 2013 provide ‘imprisonment for life’ as one of the sentencing options that a court may exercise.6 Guideline 23 provides that ‘imprisonment for life is the second gravest punishment next to the sentence of death’.7 The Guidelines define ‘imprisonment for life’ to mean ‘imprisonment for the natural life of an offender’. This terminology reflects the fact that the drafters of the Sentencing Guidelines understood life imprisonment to mean imprisonment until death. Guideline 4 defines ‘long-term imprisonment’ to mean ‘a custodial sentence ranging from 30 to 45 years’. Guideline 9(1) states that a court may impose a custodial sentence ‘where the circumstances do not meet the considerations for a sentence of imprisonment for life’. There are three types of custodial sentences provided for in the Sentencing Guidelines: long-term imprisonment (30–45 years); mid-term imprisonment (15–29 years); or short-term imprisonment (15 years or less). The Guidelines provide for two instances in which a court may impose a sentence of imprisonment for life: in capital offences and in non-capital offences. Guideline 24 provides that: (1) In capital offences, the court shall consider imposing a sentence of imprisonment for life where the circumstances of the offence do not justify a sentence of death. (2) In determining whether the circumstances of an offence or offender justify imposing a death sentence or imprisonment for life, court shall consider the factors aggravating or mitigating a death sentence.

6  Guideline 10 provides: ‘The court may impose any of the following sentencing options— (a) death penalty; (b) imprisonment for life; (c) imprisonment for a specified period of time; (d) a fine; (e) community service; (f) probation; (g) a caution and discharge without punishment; and (h) any other lawful sentence option.’ 7  Guideline 17 provides: ‘The court may only pass a sentence of death in exceptional circumstances in the “rarest of the rare” cases where the alternative of imprisonment for life or other custodial sentence is demonstrably inadequate.’

106  Jamil Ddamulira Mujuzi Guideline 25 provides that ‘[i]n non-capital offences, the court shall consider imposing a sentence of imprisonment for life where any other custodial form of punishment is inadequate’. It should be noted that even before the Sentencing Guidelines came into force, but after the abolition of the mandatory death penalty, courts sentenced offenders to life imprisonment in cases where the death penalty was considered to be too harsh. For example, in Katunda Johnson v Uganda (2009) the High Court convicted the appellant of robbery with aggravating circumstances and sentenced him to death. On appeal to the Court of Appeal, he argued that the death sentence was unacceptably severe. The Director of Public Prosecutions conceded that ‘the sentence of death was too harsh in the circumstances, [but] submitted that the appellant deserved a custodial sentence which is more than 10 years … He suggested that a sentence of life imprisonment would be appropriate’ (Katunda Johnson v Uganda 2009: 3). The Court held that ‘[w]e appreciate that the appellant is a young man but should have used his youthful energy to engage in lawful activities … In our view he deserves no mercy. A long custodial sentence as suggested by the learned Assistant DPP is appropriate. We set aside the sentence of death and substitute it with one of life imprisonment’ (Katunda Johnson v Uganda 2009: 6). The Sentencing Guidelines have been considered in determining appropriate sentences, including in cases where a sentence of imprisonment for the offender’s natural life has been imposed. In Uganda v Vincent Kamau & another (2013) the accused were convicted of murder. In its judgment on sentencing, the Court held: The Sentencing Guidelines, 2011 provide for 3 categories of offenders based on the harm inflicted upon a victim and the culpability of the offender … In the present case, the prosecution evidence clearly proved that the deceased died from grave injuries inflicted upon him … This would classify the present case in the first category of offences, which are characterised by grave harm and high culpability. With regard to the applicable sentencing ranges, there are 3 classifications within the category of offenders that the present convicts lie … In my view, the present case would not fall within the ambit of the rarest of the rare cases that is deserving of the first classification … Therefore, the applicable ranges to the present convicts would be that of 30 years to life imprisonment, with a starting point of 35 years imprisonment. (Uganda v Vincent Kamau & another 2013: 14–15)

Against that background, the Court (at 16) sentenced one defendant ‘to life imprisonment or, to be specific, imprisonment for the rest of his natural life’. The second defendant was sentenced to 30 years’ imprisonment. One may have thought the Sentencing Guidelines, together with the jurisprudence of the Supreme Court since 2009 had settled the meaning of life imprisonment in Uganda. However, in Katuku v Uganda (2014) where the offender had been sentenced to 20 years’ imprisonment for robbery, the Court of Appeal held that this sentence amounted to life imprisonment and invoked the Sentencing Guidelines (the provision on the court’s duty to

Life Imprisonment and Human Rights in Uganda 107 consider sentences imposed by other courts in similar offences), to reduce the offender’s sentence to 14 years’ imprisonment. It is also worth noting that the Court of Appeal held in Naziwa v Uganda:(2014) that ‘the [Sentencing] guidelines do not take away the discretion of the court in sentencing a convicted offender. They are simply guidelines.’ Clearly, uncertainty remains about what life imprisonment means. VI.  LIFE IMPRISONMENT FOR CHILDREN?

Another problematic issue is the one of sentencing children to what could amount to life sentences. In some African countries children convicted of serious offences, such as murder, are sentenced to be detained at ‘the President’s pleasure’ and in some jurisdictions the law is unclear as to when and how such children may be released (Mujuzi 2010). In Uganda there is a similar lack of clarity. Section 105 of the Trial on Indictments Act8 provides that: (1) Sentence of death shall not be pronounced on or recorded against a person convicted of an offence if it appears to the court that at the time when the offence was committed he or she was under the age of eighteen years, but in lieu of the sentence of death the court shall order that person to be detained in safe custody pending an order made by the Minister under subsection (2) in such a place and manner as it thinks fit; and the court shall transmit the court record, or certified copy of it, together with a report under the hand of the presiding judge containing any recommendation or observations on the case he or she may think fit to make, to the Minister. (2) Upon consideration of the record and of the report transmitted to him or her under subsection (1), the Minister may by order under his or her hand direct that the person convicted shall be detained in such prison or other place of custody as may be specified in the order.

There have been cases in Uganda where children have been imprisoned on the basis of this section. Such a law has the potential of having those who committed offences while young detained indefinitely without a realistic prospect of release. Here, too, safeguards are urgently required. VII.  PERSONS FACING LIFE SENTENCES AND THE RIGHT TO LEGAL REPRESENTATION

Article 28 of the Ugandan Constitution provides for the right to a fair hearing. Article 28(3)(e) provides that ‘[e]very person who is charged with a criminal offence shall—in the case of any offence which carries a sentence 8 

Cap 23 Laws of Uganda.

108  Jamil Ddamulira Mujuzi of death or imprisonment for life, be entitled to legal representation at the expense of the State’. Article 28(3)(e) is only applicable when the accused’s trial has started (Androa Asenua & Anor v Uganda 1998). It is not clear from Article 28(3)(e) whether or not a person who is charged with an offence that attracts a life sentence and who can also afford to pay for his own lawyer is entitled to legal representation at state expense. In Kazibwe v Uganda (2014) the High Court referred to Article 28(3)(e) of the Constitution and held (at 5) that ‘in offences where the maximum penalty is life imprisonment or a capital sentence an accused has a right to be provided with defence counsel by the state where he/she cannot afford one’. In the light of the above High Court judgment, it could be argued that an accused who is charged with an offence that attracts a life sentence qualifies for legal aid if the accused does not have the means to pay for his own lawyer. However, this reasoning is not supported by the drafting history of Article 28(3)(e). The verbatim proceedings of the Constituent Assembly shows that delegates made it very clear that a person facing a life sentence should be afforded legal representation at state expense, whether or not he has the means to pay for such representation (Constituent Assembly Proceedings 1995: 1960–61 and 5833). In the light of the drafting history of Article 28(3)(e), the High Court’s ruling above is debatable. It should be noted that section 2 of the Poor Persons Defence Act of 1998 provides that for an accused to qualify for legal aid, the accused’s means should be ‘insufficient to enable him or her to obtain such aid’. It is argued that section 2 of the Poor Persons Defence Act is not applicable to accused persons facing life sentences or the death penalty. This aspect of Ugandan life imprisonment law remains controversial and will have to be settled by the legislator (by amending the Poor Persons Defence Act to expressly state that it does not apply to those accused facing life sentences and the death penalty) or by the Constitutional Court overruling the High Court decision. The provision also indicates that, in the minds of the drafters of the Constitution, persons facing the death penalty and life imprisonment are lumped together as requiring protection on human rights grounds to a greater extent than persons facing ‘lesser’ sentences.

VIII.  CONCURRENT LIFE SENTENCES

Ugandan courts have the discretion to order whether multiple sentences should be served consecutively or concurrently. Section 2(2) of the Trial on Indictment Act provides that When a person is convicted at one trial of two or more distinct offences, the High Court may sentence him or her for those offences to the several punishments prescribed for them which the court is competent to impose, those punishments,

Life Imprisonment and Human Rights in Uganda 109 when consisting of imprisonment, to commence the one after the expiration of the other, in such order as the court may direct, unless the court directs that the punishments shall run concurrently.

The general rule under section 2(2) above is that where a person is sentenced to more than one sentence of imprisonment, those sentences should run consecutively. Therefore, there is nothing that prevents a High Court from imposing more than one life sentence and ordering that they should run consecutively. Unlike the South African Correctional Services Act 111 of 1998 and the Namibian Prisons Act 17 of 1998, the Ugandan Prisons Act does not provide that more than one life sentence must run concurrently. Regulation 96 of the Prison Regulations of 2012 provides that unless the court orders otherwise, more than one sentence of imprisonment should run consecutively. Thus, there is nothing which prevents a Ugandan court from sentencing a prisoner to consecutive life sentences. This could explain why in many cases where courts have imposed more than one life sentence, they have stated expressly that they should be served concurrently. For example, in Uganda v Mugisha Jackson (2009) the accused was convicted of five counts of murder and the Court held (at 15): Taking into account all the circumstances of the case and the brutal manner in which he conducted himself towards the deceased persons, and believing as I do that a punishment, however severe cannot match the cost [of] lives, and finally taking into account the seven years spent on remand, I sentence him to life imprisonment in respect of each offence, all five sentences to be served concurrently.

Likewise, in Weitire Asanasio v Uganda (2010) the appellant was convicted of two counts of defilement and sentenced to life imprisonment on each court and the court ordered that the sentences should run concurrently. In Uganda v Gule (2014) the accused was convicted of five counts of murder and sentenced to life imprisonment on each count. The court ordered that they should run concurrently. What remains unclear, however, is the impact of concurrent life sentences, for if they are truly whole life sentences it will make little difference in practice. On the other hand, if there is a possibility of release on remission after 20 years, the difference is real, for two consecutive life sentences would mean 40 years before remission would come into play. IX.  PURPOSES OF PUNISHMENT AND LIFE IMPRISONMENT

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’. Uganda thus has an international obligation to ensure that offenders sentenced to imprisonment are rehabilitated. The Prisons Act, in different

110  Jamil Ddamulira Mujuzi sections, emphasises that imprisonment is aimed at rehabilitating o ­ ffenders,9 and does not distinguish between different forms of ­imprisonment in this regard. It is therefore necessary to look at the purposes of punishment that courts have emphasised when sentencing offenders to life imprisonment. One of the factors that some courts have considered in determining whether to impose a sentence of life imprisonment is the offender’s prospect of rehabilitation. For example, in Uganda v Turanzomwe Norman (2011) the accused was convicted of defilement. In sentencing him to eight years’ imprisonment, the High Court held that in the light of the accused’s personal circumstances and also the circumstances in which the offence was committed, ‘I will only be lenient in that I will not sentence him to death or life imprisonment with a hope that he will reform in the period for which I sentence him’ (Uganda v Turanzomwe Norman 2011: 7). This judgment indicates that the Court was of the view that sentencing an offender to life imprisonment would not be conducive to his rehabilitation. Deterrence is one of the purposes of punishment that courts have emphasised in imposing the sentence of life imprisonment. For example, in Uganda v Tweheyo Kenneth (2011) the accused was convicted of murder and in sentencing him to life imprisonment, the Court held (at 10): The offence was committed with great violence and brutality, for these reasons I will give the convict a sentence that will send a warning to criminals of his kind, and keep him alive but away from the society to which he is a danger. I do hereby sentence him to life imprisonment. (Emphasis in the original)

Likewise, in Uganda v Mukwana (2013) the accused was convicted of murder and in sentencing him to life imprisonment, the Court held (at 7) that ‘[h]e should be removed from society for the safety of other people’. In Uganda v Anyama & anor (2011) the accused was convicted of murder and in sentencing him to life imprisonment instead of imposing the death penalty, the Court held (at 13) that ‘[h]e is the type of person to be excluded from Society but I do not agree that he be also killed’. In Weitire Asanasio v Uganda (2010) the High Court convicted the appellant of defilement and sentenced him to 12 years’ imprisonment. He appealed against the sentence to the Court of Appeal which set aside the sentence and replaced it with one of life imprisonment. In justifying the imposition of a life sentence, the Court of Appeal held (at 1–2): ‘He is not fit to return to the society where he is still capable of doing the same thing to other young girls … [H]e should stay in custody for much longer in order to protect the young girls growing up in the village where he grew up.’ In some cases, however, it has not been as clear which purpose of punishment was emphasised in sentencing the offender to life imprisonment. For

9 

See sections 4(1), 5(b), 10(1)(d) and 90(2).

Life Imprisonment and Human Rights in Uganda 111 example, in Uganda v Abelle Asuman (2010), the accused was convicted of robbery and at the sentencing hearing the prosecution argued (at 16) that he should be sentenced to death as a deterrent because ‘[i]t is the duty of court that the public is protected by eliminating criminals’. The Court held (at 16) that The convict is a first offender. The offence he is convicted of is a grave one. The objective of sentence will be considered. The offence is rampant. This offence was committed under terror of innocent people. Taking into account the respective submission by respective counsel and the apparent remorsefulness of the convict, I will sentence him to life imprisonment.

Likewise, in Uganda v Bonyo Abdu (2009), the accused was convicted of aggravated defilement, which carries the maximum penalty of death. In sentencing him to life imprisonment, the Court merely held (at 11) that it ‘considered the gravity of the offence and the need to commensurate the sentence with the gravity of the offence’. In some cases the court does not mention any purpose of punishment that the sentence of life imprisonment imposed should serve (eg, Uganda v Wampa Faziri and others 2013; Uganda v Magezi Gad 2009). Nevertheless, one may conclude that when they impose life imprisonment, Ugandan courts are not thinking about the possibility of the offender being rehabilitated; they are imposing a harsh punishment often with the deliberate intention of excluding someone from society. One may question how this fits with the wider obligation that Ugandan courts have to consider the principle of rehabilitation too. X.  DE FACTO LIFE SENTENCES

In some African countries the abolition of the death penalty, or at least of mandatory death sentences, has seen an increase not only in the use of life imprisonment but also in the use of sentences which, although not referred to as life sentences, are in practice life sentences. For example, in Liberia courts are empowered to sentence offenders convicted of serious offences to up to 90 years in prison (Mujuzi 2009d); case law from Namibia shows that some offenders have been sentenced to lengthy prisons terms of up to 80 years’ imprisonment (S v Kamudulunge 2014; S v Aibeb 2011).10 In Kenya, courts are imposing some lengthy non-parole periods of 20 years (eg, where an offender was sentenced to 35 years in Republic v Francis Kariko Kimani (2014))11 and even 30 years (eg, where an offender was sentenced to 10 In S v Kamudulunge (2014) the offender was convicted of murder and sentenced to 60 years’ imprisonment; and in S v Aibeb (2011) the offender was convicted of murder and sentenced to 87 years’ imprisonment. 11  See also Republic v Vincent Kipkurui Koech & another (2011).

112  Jamil Ddamulira Mujuzi 56 years in Republic v Milton Kabulit & 6 others (2012)). In Uganda, there have been similar developments. The abolition of the mandatory death penalty was accompanied by a dramatic increase in the number of offenders sentenced to lengthy terms ranging from 21 to 99 years of imprisonment. This is the reason why in Tigo Stephen v Uganda the Supreme Court noted that ‘in many cases in Uganda, Courts have imposed specific terms of imprisonment beyond twenty years instead of imposing life imprisonment’. Initially, this may have been done to bypass section 86 of the Prisons Act which was thought to provide that life imprisonment always meant 20 years for the purpose of remission. However, since the reinterpretation of life imprisonment by the Supreme Court of Uganda, this trend has continued. The new Sentencing Guideline may have contributed to the increased use of sentences of more than 20 years, that is, more than what was previously regarded as the time to be served for life imprisonment. For example, in Uganda v Kamau (2013) the court convicted the accused of murder and aggravated robbery. The Court invoked the Sentencing Guidelines in sentencing ‘the first convict … to life imprisonment or, to be specific, imprisonment for the rest of his natural life’. It sentenced the second convict to 30 years’ imprisonment. Likewise, in Uganda v Ojara (2015) the accused was convicted of aggravated defilement and the court invoked the Sentencing Guidelines to sentence him to 40 years’ imprisonment. Statistics from the Uganda Prison Services show that as at 5 February 2015, there were 1,035 offenders serving sentences ranging between 21 and 99 years’ imprisonment. Of these only 63 had been sentenced before 21 January 2009. Like life imprisonment, these lengthy prison terms raise human rights issues (Henry 2012). The difficulty with the Ugandan Prisons Act is that it does not provide for the maximum number of years that an offender sentenced to a lengthy term of imprisonment has to serve before he may be released early. Section 89(1) of the Prisons Act provides that A prisoner serving a sentence of imprisonment for a period of three years or more may be allowed by the Commissioner General within six months of the date he or she is due for release on conditions and for reasons approved by the Commissioner General to be temporarily absent from prison on parole for a stated length of time which shall not be greater than three months.

The effect of section 89(1) is that offenders who were sentenced, for example, to 90 years in prison, unless they qualify for remission, would have to serve 89 years and 6 months in prison to qualify for parole. These offenders can only be released early if pardoned by the President exercising his prerogative of mercy (Kasozi 2015). In a country where many of the offenders are young (Angurini 2015) and where, according to the World Health Organisation’s (WHO) 2013 statistics, the life expectancy is approximately 57 years for men and 61 years for women (WHO 2013), such a person is likely to spend the rest of his life in prison. In effect, such an offender has no

Life Imprisonment and Human Rights in Uganda 113 real prospect of being released. These sentences, although not life sentences in name, are imprisonment for life, often without any realistic prospect of release in practice. One solution to this problem would be for Uganda to adopt the approach followed by some countries, such as South Africa,12 which have set the maximum number of years an offender, irrespective of the number of years to which he was sentenced, has to serve before he may be considered for parole. This would ensure that even those offenders sentenced to lengthy prison terms have a prospect of being released. XI. CONCLUSION

This chapter has dealt with the various human rights implications of the sentence of life imprisonment and of lengthy fixed-term prison sentences in Uganda. The key human rights questions that have emerged from this overview relate to the release of prisoners serving these sentences. In the case of life imprisonment there is great confusion about whether life sentence prisoners can be considered for release at all. There is also confusion about whether they can be released conditionally. Conditional release, that is, parole, ideally offers both treatment and a measure of supervision in the community to persons who have been released after serving long periods in prison. Clearly, these are both questions that should be resolved. Unlike in some African countries, such as South Africa13 and Namibia,14 where there is detailed legislation on the release of offenders including those serving life sentences—and that release means release on parole—the Ugandan Prisons Act does not deal clearly with the release of life prisoners nor set out a framework for establishing the conditions to which they should be subject in the community after release. It is because of this that the Supreme Court has had to deal with the question of the meaning of life imprisonment. Although the Supreme Court held that life imprisonment should mean imprisonment for the remainder of the offender’s natural life, confusion remains. There is a need for the Prisons Act, and ideally also the Penal Code and the Sentencing Guidelines, to be amended to ensure that they state expressly what life imprisonment means. In providing for the meaning of life imprisonment and in stipulating how it should be implemented, the legislature should avoid the approach taken by the Supreme Court that life imprisonment should mean imprisonment for the natural life of the offender. As mentioned above, international human rights standards applicable in Uganda expressly require states to 12 

Section 73(6) of the Correctional Services Act 1998. Van Vuren v Minister of Correctional Services and others (2010). 14  See section 117 of the Correctional Service Act 9 of 2012. See also Kamahere and others v Government of the Republic of Namibia and others (2014). 13 

114  Jamil Ddamulira Mujuzi amend their laws where necessary to provide an appropriate framework for the release of offenders sentenced to life imprisonment. The chapter has shown that life imprisonment is increasingly being used in some African countries, including Uganda, as a replacement for the death penalty. This may explain the turn towards whole life sentences. It also contributes towards why courts, which still fear that persons sentenced to life imprisonment will be considered for early release, rather impose very long fixed-term sentences. Such sentences may be so long that they are de facto life sentences which ensure that offenders sentenced to lengthy prison terms remain in prison for the rest of their lives. The use of excessively long fixedterm sentences should also be limited by law, as in practice they may be so disproportionately severe as to be cruel, inhuman or degrading. REFERENCES

Angurini, TB (2015) ‘45,000 youth in prison—official’ Daily Monitor, 16 August. Available online at http://www.monitor.co.ug/News/National/ 45-000-youth-in-prison---official/-/688334/2834060/-/14cxin9z/-/index. html (accessed 28 January 2016). Constituent Assembly Proceedings (1995) Proceedings of the Constituent Assembly (Official Report) (Uganda Printing and Publishing Corporation, Entebbe). Henry, JS (2012) ‘Death-in-Prison Sentences: Overutilized and Underscrutinized’ in Charles J Ogletree Jr and Austin Sarat (eds), Life Without Parole: America’s New Death Penalty? (New York, New York University Press) 66–95. Kasozi, E (2014) ‘46% against death penalty, say activists’ Daily ­Monitor, 13 October. Available online at http://www.monitor.co.ug/News/ National/46--against-death-penalty--say-activists/-/688334/2483880//3qg98ez/-/index.html (accessed 4 February 2016). ––— (2015) ‘2,500 inmates listed for pardon’ Daily Monitor, 29 December. Available online at http://www.monitor.co.ug/News/National/2500inmates-listed-for-pardon/-/688334/3012740/-/5aht10z/-/index.html (accessed 28 January 2016). Kwesiga, P (2013) ‘420 convicts on death row’ The New Vision 16 June. Available online at http://www.newvision.co.ug/new_vision/news/1323 ­ 182/420-convicts-death-row (accessed 7 July 2016). Mujuzi, JD (2008) ‘Why the Supreme Court of Uganda Should Reject the Constitutional Court’s Understanding of Imprisonment for Life’ African Human Rights Law Journal, 8, 163–86. ––— (2009a) Life Imprisonment in International Criminal Tribunals and Selected African Jurisdictions: Mauritius, South Africa and Uganda. Unpublished LLD thesis, University of the Western Cape, Cape Town.

Life Imprisonment and Human Rights in Uganda 115 ––— (2009b) ‘International Human Rights Law and Foreign Case Law in Interpreting Constitutional Rights: The Supreme Court of Uganda and the Death Penalty Question’ African Human Rights Law Journal, 9(2), 576–89. ––— (2009c) ‘Life Imprisonment in South Africa: Yesterday, Today, and Tomorrow’ South African Journal of Criminal Justice, 22(1), 1–38. ––— (2009d) ‘High Crime Rate Forces Liberia to Reintroduce the Death Penalty and Put International Treaty Obligations Aside: What the Critics Missed?’ African Journal of International and Comparative Law, 17(2), 342–54. ––— (2010) ‘Sentencing Children to Life Imprisonment and/or to be Detained at the President’s Pleasure in Eastern and Southern Africa’ International Journal of Punishment and Sentencing, 6(2), 49–61. ––— (2013) ‘The Consequences of the Abolition of the Mandatory Death Penalty in Uganda’ in P Hodgkinson (ed), The International Library of Essays on Capital Punishment: Abolition and Alternatives to Capital Punishment volume II (Dartmouth, Ashgate) 303–17. UN Committee against Torture (2004) Conclusions and recommendations of the Committee against Torture: Bulgaria UN Doc CAT/C/CR/32/6, 11 June 2004. ––— (2014) Conclusions and recommendations of the Committee against Torture on the third periodic report of Lithuania Un Doc CAT/C/LTU/ CO/3, 17 June 2014. UN Human Rights Council (2008) Universal Periodic Review, Report of the Working Group on the Universal Periodic Review (Japan) A/HRC/8/44, 30 May 2008. WHO (2013) ‘Uganda’. Available online at http://www.who.int/countries/ uga/en/ (accessed 28 January 2016). TABLE OF CASES

Kenya Fred Michael Bwayo v Republic [2009] eKLR. Available online at http:// kenyalaw.org/caselaw/cases/view/55838 Jackson Maina Wangui & another v Republic [2014] eKLR, para 72. ­Available online at http://kenyalaw.org/caselaw/cases/view/102134 Joseph Njuguna Mwaura & 2 others v Republic [2013] eKLR. Available online at http://kenyalaw.org/caselaw/cases/view/91626 Republic v Dickson Mwangi Munene & another [2011] eKLR. Available online at http://kenyalaw.org/caselaw/cases/view/77551 Republic v Francis Kariko Kimani [2014] eKLR. Available online at http:// kenyalaw.org/caselaw/cases/view/104364

116  Jamil Ddamulira Mujuzi Republic v Milton Kabulit & 6 others [2012] eKLR. Available online at http://kenyalaw.org/caselaw/cases/view/79423 Republic v Vincent Kipkurui Koech & another [2011] eKLR. Available online at http://kenyalaw.org/caselaw/cases/view/77745 Namibia Kamahere and others v Government of the Republic of Namibia and others (A 58/2014) [2014] NAHCMD 209 (10 July 2014) S v Aibeb 2011 JDR 1575 (NM) S v Kamudulunge 2014 JDR 0367 (NmO) S v Tcoeib (SA 4/93) [1996] NASC 1; 1996 (1) SACR 390 (NmS) South Africa S v Bull and Another (221/2000) [2001] ZASCA 105 (26 September 2001) Van Vuren v Minister of Correctional Services and others 2010 (12) BCLR 1233 (CC); 2012 (1) SACR 103 (CC) Uganda Ainobushobozi v Uganda (Criminal Appeal No. 242 of 2014) [2014] UGCA 50 (judgmentement of 18 December 2014) Androa Asenua & Anor v Uganda (Criminal Appeal No. 1 of 1998) [1998] UGSC 23 (2 October 1998) Attorney General v Susan Kigula & 417 Ors ((Constitutional Appeal No. 03 of 2006)) [2009] UGSC 6 (21 January 2009) Bukenya v Uganda (Criminal Appeal No. 17 of 2010) [2013] UGSC 3 (29 January 2013) Friday Yasin v Uganda (Criminal Appeal No. 16 of 2012) [2014] UGCA 54 (18 December 2014) Kansiime Brazio & Anor v Uganda (Criminal Appeal Nos. 12/2008 & 39/2009) [2014] UGCA 71 (1 July 2014) Katuku v Uganda (Criminal Appeal No. 178 of 2014) [2014] UGCA 64 (18 December 2014) Katunda Johnson v Uganda (Criminal Appeal No. 30 of 2002) [2009] UGCA 27 (6 August 2009) Kazibwe v Uganda (Case No. HCT-00-AC-CN-0010/2014) [2014] UGHCACD 18 (10 November 2014) Kisembo v Uganda (Criminal Appeal No. 411 of 2014) [2014] UGCA 53 (18 December 2014)

Life Imprisonment and Human Rights in Uganda 117 Mugabe v Uganda (Criminal Appeal No. 0412 of 2009) [2014] UGCA 66 (18 December 2014) Naturinda Tamson v Uganda (Criminal Appeal No. 13 of 2011) [2015] UGCA 3 (3 February 2015) Naziwa v Uganda (Criminal Appeal No. 0088 of 2009) [2014] UGCA 28 (10 April 2014) Ninsiima v Uganda (Criminal Appeal No. 0180 of 2010) [2014] UGCA 65 (Court of Appeal judgment of 18 December 2014) Opolot Justine and Another v Uganda (Criminal Appeal No. 155 of 2009) (Court of Appeal decision of 1 July 2014). Otema v Uganda (Criminal Appeal No. 155 of 2008) [2015] UGCA 42 (15 June 2015) Sekamatte v Uganda (Criminal Appeal No. 67 of 2013) [2015] UGCA 98 (27 May 2015) Springs International Hotel Ltd v Hotel Diplomate Ltd & Anor (Civil Suit No. 227 of 2011) [2014] UGHCLD 40 (3 December 2014) Tigo Stephen v Uganda (Criminal Appeal No. 08 Of 2009) [2011] UGSC 7 (10 May 2011) Tumwesigye v Uganda (Criminal Appeal No. 46 of 2012) [2014] UGCA 61 (18 December 2014) Uganda v Muwonge George (H C. CR. SC. No. 513 of 09) (H C. CR. SC. No. 513 of 09) [2009] UGHC 212 (29 September 2009) Uganda v Abelle Asuman (HCT-04-CR-SC-0052-2010) (HCT-04-CRSC-0052-2010) [2010] UGHC 151 (29 November 2010) Uganda v Anyama & Anor (Criminal Session No. 0002 of 2011) [2011] UGHC 76 (17 June 2011) Uganda v Bonyo Abdu (Crim. Case No. 17 of 2009) (Crim. Case No. 17 Of 2009) [2009] UGHC 200 (23 October 2009) Uganda v Charles Sekamatte, Criminal Case No. 170 of 2012 (20 S­ eptember 2012) Uganda v Gule (Criminal Session Case No. 302 of 2013) [2014] UGHCCRD 31 (6 June 2014) Uganda v Magezi Gad (HCT-05-CR-CSC-0108/2007) [2009] UGHC 235 (20 April 2009) Uganda v Mugisha Jackson [2009] UGHC 123 (23 November 2009) Uganda v Mukwana (Criminal Session Case No. 256 of 2011) [2013] UGHCCRD 76 (13 November 2013) Uganda v Muwonge HC. CR. SC. NO 513/09 (High Court judgment of 29 September 2009) Uganda v Ocitti (HCT-02-CR-SC-0149-2014) [2015] UGHCCRD 2 (9 March 2015) Uganda v Ojara (HCT-02-CR-SC-0364-2014) [2015] UGHCCRD 6 (9 March 2015)

118  Jamil Ddamulira Mujuzi Uganda v Sekamatte (Criminal Case No. 170 of 2012) [2012] UGHC 186 (20 September 2012) Uganda V Turanzomwe (Criminal Case KAB-00-CR-CSC-237 OF 2009) [2011] UGHC 56 (29 April 2011) Uganda v Vincent Kamau & another Uganda v Kamau (HCT-00-CRSC-0077 of 2012) [2013] UGHCCRD 20 (29 April 2013) Uganda v Wampa Faziri & ors (Criminal Session Case No. 257/2011) [2011] UGHCCRD 74 (12 November 2013) Weitire Asanasio v Uganda (Crim. Case No. 46 of 2006) [2010] UGCA 47 (16 November 2010)

5 A New Form of Life Imprisonment for India? MADHURIMA DHANUKA

I. INTRODUCTION

O

N 2 NOVEMBER 2015, a five-judge Constitution Bench of the Supreme Court of India legitimised a new sentence. It is a sentence where the death penalty can be substituted by imprisonment for life or a specified period of time and be put beyond remission. By virtue of this dictum, the courts now have the authority not only to send a person to prison for the remainder of their natural life, but also to restrict the statutory power of the executive to grant remission, thus prohibiting their early release from prison (Union of India v Sriharan alias Murugan and others 2015). This development was preceded by the introduction of a new category of sentencing in the Indian Penal Code of 1860 (IPC) in 2013, that is, life imprisonment for the remainder of a person’s natural life. This amendment was brought about in the aftermath of a huge public outcry that ensued after the Delhi rape case in India (see section III below). This new ‘life means life’ sentencing in India had the legal circles debating the legality of such sentences as well as the effect of such sentences on the executive’s inherent power to grant remission. Some even questioned whether this new form of sentencing will evolve to become a plausible alternative to the death sentence (Law Commission of India 2014: 26). The recent pronouncement of the Constitution Bench of the Supreme Court of India has finally laid those questions to rest but, perhaps, raised many more in its wake. This chapter assesses life imprisonment in India, from its introduction into the Penal Code to the various judicial pronouncements that have sought to explain and interpret its meaning. It also discusses the jurisprudential basis under which the special category of sentences has been legalised, and argues that the fundamental premise for sanctioning such sentences is flawed.

120  Madhurima Dhanuka II.  LIFE IMPRISONMENT: BASICS

Life imprisonment has a history that closely parallels that of prisons (Van Zyl Smit 2002). With the abolition of the death penalty in a majority of nations around the world, life imprisonment has taken over the status of being the ‘gravest’ form of punishment under the existing penal systems.1 Worldwide, life sentences have developed as an indeterminate sentence; that is, as a term of imprisonment without a prescribed duration at the time of sentencing (Mauer, King and Young 2004). Although offenders sentenced to life imprisonment have in principle no absolute right ever to be released from prison, more often than not life sentences may entitle prisoners to be considered for release after a minimum period has been served. Under the IPC there are more than 50 offences that can attract a sentence of life imprisonment.2 At the end of 2014, 71,632 persons (including 3,176 women) were serving life imprisonment in prisons across India (National Crime Records Bureau 2014: i). This constitutes a startling 54.5 per cent of the total sentenced prison population in the country. Undoubtedly, life imprisonment as a form of punishment is widely used in India. Imprisonment for life as a distinct punishment for certain grave offences was introduced in the IPC in 1956, when the Code of Criminal Procedure (Amendment) Act 1955 came into force.3 The amendment introduced the term ‘imprisonment for life’ in section 53 of the IPC, which lays down punishments. The IPC also defines the meaning of life sentences in section 45, stating that the word ‘life’ denotes the life of a human being, unless the contrary appears from the context. Thus a plain reading of section 45 read with section 53 of the IPC indicates that life imprisonment entails a sentence for the remaining life of the offender. Once the judicial process comes to an end, that is, a sentence becomes final, the Indian Constitution, as well as statutory law, provides a person sentenced to life imprisonment (lifer) with certain options to seek early release from prison. Articles 72 and 161 of the Indian Constitution of 1950 confer the power to grant pardons, reprieves, respites or remissions upon the President of India and the Governors of the States, respectively. When a conviction is upheld by the highest court of appeal, a life sentence or death row prisoner can thus write to the appropriate head of state seeking remission. 1  This is true even in international criminal law; see Art 77.1(b) of the Rome Statute of the International Criminal Court. 2  See the First Schedule to the Code of Criminal Procedure of 1973. 3  Prior to this amendment, the Indian Penal Code of 1860 provided for six types of punishments, viz, death, transportation, penal servitude, imprisonment, forfeiture of property and a fine. Life imprisonment was not a separate punishment, until the 1955 amendment, which substituted transportation for life with the punishment of imprisonment for life.

A New Form of Life Imprisonment for India? 121 In addition to the constitutional powers to remit, the executive has been conferred powers of commutation under statutory law as well. Section 55 of the IPC confers powers upon the appropriate government to commute a sentence of imprisonment for life to imprisonment for a term not exceeding 14 years. Section 432 of the Code of Criminal Procedure of 1973 (CrPC) prescribes the power of the appropriate government to suspend or remit sentences. Section 433 of the CrPC enumerates the sentences that the appropriate government has the power to commute: namely, fines, simple imprisonment, rigorous imprisonment, life imprisonment and the death sentence. Section 433A imposes a restriction on the power of the appropriate government for remissions or suspensions or commutation of punishments provided under sections 432 and 433 by specifying the exercise of such power in relation to the punishment of death or life imprisonment in order to ensure at least 14 years of imprisonment. In addition, prisoners can also earn remission under the Prison Rules or other relevant Rules based on their good behaviour or other stipulated grounds. However, in case of life imprisonment, unless the sentence is commuted for a specific period by the government, there is no scope to count the earned remission: As a sentence of life imprisonment is indeterminate and of uncertain duration, the result of subtraction from an uncertain quantity is still an uncertain quantity and release of the prisoner cannot follow except on some fiction of quantification of a sentence of uncertain duration. (Maru Ram v Union of India 1981: 1220)

In effect, no matter how much remission is earned, the sentence of life imprisonment can never be reduced to zero, unless the appropriate government commutes it. In India, the task of reviewing sentences and recommending releases to the state government has been entrusted to the State Sentence Review Boards.4 Release of life sentence prisoners after a recommendation by the State Sentence Review Boards or similar body is termed ‘premature release’, and can be compared to the concept of early release that is prevalent in most countries. Once prisoners have been released in this way, they are free to live their lives in society, back with their family without any conditions or supervision. In addition, a life sentence prisoner also has the option to seek leave or what is commonly known as ‘parole’ or ‘furlough’, the rules of which are governed by the prison manuals of each state. Parole is the temporary release of a prisoner from prison for a specified number of days, upon completion of which the prisoner must return to prison. While the criteria and

4  In some federal states they are termed Advisory Boards or Premature Release Boards. Also see National Human Rights Commission (2003).

122  Madhurima Dhanuka duration of parole varies from state to state, the Model Prison Manual 20035 provides that lifers should be granted parole upon completion of three years of actual imprisonment for a period of 21 days during the first five years of confinement, and 28 days in subsequent years. Generally the power to grant parole vests with the head of the prison department of each state. Thus, in India, prisoners sentenced to life imprisonment can seek both permanent and temporary release under various provisions of law. However, these provisions have often led many lifers to believe that they have a right to be released after serving 14 years in prison, and they have time and again petitioned the Indian Supreme Court to seek clarity regarding the true meaning of a life sentence. A.  Life Means ‘Life’? Since the introduction of the life sentence in the Indian penal system, the true meaning of life imprisonment has been subject to much deliberation by the Indian Supreme Court. This question came up before the Court for the first time in 1961, in the case of Gopal Vinayak Godse v State of Maharashtra (1961). After due deliberation, the Court clarified that unless a sentence of life imprisonment was commuted or remitted by the appropriate authority under the relevant provisions of the IPC or CrPC, a prisoner sentenced to life imprisonment was bound in law to serve the life term in prison. The question was again raised in 1976, in State of Madhya Pradesh v Ratan Singh (1976), where the Court ruled that a sentence of imprisonment for life does not automatically expire at the end of 20 years, including remissions. This was because the Administrative Rules framed under the various Jail Manuals or under the Prison Act of 1894 could not supersede the statutory provisions of the IPC. A sentence of imprisonment for life means a sentence for the entire life of the prisoner unless the appropriate government chooses to exercise its discretion to remit either the whole or a part of the sentence. The appropriate government has the discretion to remit or refuse to remit the sentence. Where it refuses to remit the sentence, no writ can be issued directing the state government to release the prisoner. However, a prisoner sentenced to life imprisonment has only the right to be considered for early release on the basis of remission earned, and has no right to be released after completion of a fixed term of sentence. This proposition was affirmed in Mohd Munna v Union of India (2005).6

5  For more information on parole, see Bureau for Police Research and Development (2003) Ch 17.05. 6  Also affirmed in Naskar (Life Convict) v State of WB (2000); Zahid Hussein v State of West Bengal (2001); Kamalanantha v State of Tamil Nadu (2005); and CA Pious v State of Kerala (2007).

A New Form of Life Imprisonment for India? 123 The ­petitioner, who had been sentenced to imprisonment for life, contended that, as he had already completed 21 years’ imprisonment, his further detention was illegal and sought compensation for his alleged illegal detention beyond the period of 14 years. Rejecting the contentions made by the petitioner, the Court held that, in the absence of an order of remission formally passed by the appropriate government, there was no provision in the IPC or in the CrPC under which a sentence of life imprisonment could be treated as for a term of 14 years or 20 years. Furthermore, a prisoner undergoing imprisonment for life could not claim remission as a matter of right. This position has again been reiterated by the constitutional bench of the Supreme Court in Union of India v Sriharan alias Murugan and o ­ thers (2015) (hereinafter referred to as ‘Sriharan’), where the Court discussed whether imprisonment for life means for the rest of an individual’s life or whether the prisoner has a right to claim remission. Relying on the ratio of various earlier judicial pronouncements, the Court settled the legal position, stating: [I]mprisonment for life in terms of Section 53 read with Section 45 of the Penal Code only means imprisonment for rest of the life of the prisoner subject, however, to the right to claim remission, etc. as provided under Articles 72 and 161 of the Constitution to be exercisable by the President and the Governor of the State and also as provided under Section 432 of the Code of Criminal Procedure. (Sriharan 2015: para 61)

Thus, the settled position in law now is that life imprisonment means a whole life sentence and that no person has the right to be released after completing 14 years of the sentence. However, a person may seek release under the prescribed norms and procedures laid down by state governments for seeking premature release. Therefore, while there is a right to be considered for premature release, there is no absolute right of release for lifers after the completion of 14 years’ imprisonment. III.  ADVENT OF A NEW SENTENCING POLICY—LIFE IMPRISONMENT WITHOUT THE POSSIBILITY OF REMISSION

While the Supreme Court has consistently maintained that ‘life means life’ and a prisoner has a right to be considered for release after having completed 14 years of actual imprisonment, the right to claim remission and be considered for release has, in recent times, been questioned, especially in cases where the accused was sentenced to death and sought its conversion to a sentence of life imprisonment. One primary concern that has been voiced by the Court is the adequacy of a life sentence in such cases, that is, whether the punishment will be commensurate to the crime committed. In order to address this concern, in a number of judgments the Court has either fixed

124  Madhurima Dhanuka the term that must be served before any consideration of release or sought to disentitle the lifer from being granted any remission whatsoever. The justifications for the imposition of such sentences were laid down by the Court over 35 years ago in Dalbir Singh and others v State of Punjab (1979), where the Court observed: [W]e may suggest that life imprisonment which strictly means imprisonment for the whole of the men’s life but in practice amounts to incarceration for a period between 10 and 14 years may, at the option of the convicting court, be subject to the condition that the sentence of imprisonment shall last as long as life lasts, where there are exceptional indications of murderous recidivism and the community cannot run the risk of the convict being at large. This takes care of judicial apprehensions that unless physically liquidated the culprit may at some remote time repeat murder.

Based on this premise, there have been a number of instances where the courts have substituted a sentence of death with whole life imprisonment or life imprisonment with restrictions on being released before completion of a specific number of years. A judgment worth considering in this regard is Subhash Chander v Krishan Lal and others (2001), where based on the circumstances of the case, the Court held that for the appellant, imprisonment for life should mean that he remains in prison for the rest of his life. He will not be entitled to any commutation or premature release under section 401 of the CrPC, the Prisoners Act of 1900, a Jail Manual or any other statute and or rules made for the purposes of grant of commutation and remission. What makes this judgment peculiar is that the appellant himself submitted before the Court that, if he were to be sentenced to life imprisonment, he would never seek early release or commutation of his sentence on any ground. Taking its cue from its verdict in Subash Chander, the Court in Aftab Ahmed Ansari alsas Aftab Ansari v The State of West Bengal (2014) once again imposed a sentence of life without any possibility of remission. In addition, in a number of cases the Court imposed sentences where it fixed the minimum number of years the inmate must spend in prison before being considered for remission. For instance in Shri Bhagwan v State of Rajasthan (2001), Prakash Dhawal Khairnar (Patil) v State of Maharashtra (2002), Ram Anup Singh and others v State of Bihar (2002), the Court directed that the appellant would not be released from prison until he had served out at least 20 years of imprisonment. Similarly, in Haru Ghosh v State of West Bengal (2008), the Court thought it appropriate to pass a sentence where the accused would have to remain in prison for a minimum of 35 years prior to any consideration of release. Against the backdrop of these discussions, the legislature introduced a similar sentence into the IPC in 2013. These amendments were a response to the huge public outcry in the wake of the 2012 Delhi rape incident,

A New Form of Life Imprisonment for India? 125 which involved the gang rape and fatal assault on a 23-year-old woman in a private bus (Committee on Amendments to Criminal Law 2013: i). The death of the rape victim sparked unprecedented demonstrations across the country demanding stronger anti-rape laws and a change to the widely entrenched practice of blaming the victim rather than the perpetrator. Public protests against the government led to the setting up of a judicial committee to review the law in order to ensure quicker investigation and prosecution of sex offenders. After a little deliberation, and almost as a knee-jerk reaction, the Committee recommended a legislative clarification that life imprisonment must always mean imprisonment for ‘the entire natural life of the convict’ (Committee on Amendments to Criminal Law 2013: 239). Based on the recommendations made by the committee, section 376A was added to the IPC in 2013 via the Criminal Law (Amendment) Act of 2013. It states that a person committing the offence of sexual assault, who inflicts an injury that causes the death of the person or causes the person to be in a persistent vegetative state, shall be punished with rigorous imprisonment7 for a term which shall not be less than 20 years, but which may extend to imprisonment for life, which shall mean the remainder of that person’s natural life, or with death. Certain other sections too were amended to include this explanation of life imprisonment.8 However, no corresponding amendments were made to the CrPC restraining the power of the executive to grant remission in such cases. This left the legal position unclear. Did such sentences fall into the category of life imprisonment without any possibility of release? Or was this merely an affirmation of the view that life means whole life and that no person has a right to be released after the completion of 14 years, but that a person may seek release under the prescribed norms and procedures laid down by state governments for seeking premature release? While the creation of this new category of life sentences satisfied the general public and women’s rights organisations, the lack of any real or substantive deliberation regarding an appropriate framework or guidelines to assist judges in determining the length of sentence (Batra 2010) raised complex questions regarding sentencing policy. The Supreme Court addressed this issue at length in Swamy Shraddananda v State of Karnataka (2008), where, after discussing a catena of judgments on life imprisonment, the Court substituted the sentence of death with ‘imprisonment for life’ and directed that the convicted person would not be released

7  Under Indian law imprisonment can be of two types, simple and rigorous. Only prisoners sentenced to rigorous imprisonment can be subjected to prison labour, while those sentenced to simple imprisonment cannot be. For more see State of Gujarat and another v Hon‘ble High Court of Gujarat (1998). 8  Sections 370(6), 370(7), 376, 376D and 376E.

126  Madhurima Dhanuka from prison for the rest of his life. It opined that a sentence of imprisonment for a term of 14 years, that goes under the euphemism of life imprisonment is equally, if not more, unacceptable in certain cases. It argued that there was a very strong case for making a special category for the very few cases where the death penalty might be substituted by the punishment of imprisonment for life or imprisonment for a term in excess of 14 years and to put that category beyond the application of remission. The following excerpts of the judgment reflect the reasoning behind the Court’s opinion: The issue of sentencing has two aspects. A sentence may be excessive and unduly harsh or it may be highly disproportionately inadequate. When an appellant comes to this court carrying a death sentence awarded by the trial court and confirmed by the High Court, this Court may find…that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence. But at the same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment that subject to remission normally works out to a term of 14 years would be grossly disproportionate and inadequate. What then the Court should do? If the Court’s option is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes, of not more than 14 years and the other death, the court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the court, i.e., the vast hiatus between 14 years’ imprisonment and death. In light of the discussions made above we are clearly of the view that there is a good and strong basis for the Court to substitute a death sentence by life imprisonment or by a term in excess of fourteen years and further to direct that the convict must not be released from the prison for the rest of his life or for the actual term as specified in the order, as the case may be. (Swamy Shraddananda v State of Karnataka 2008: para 66)

However, this line of reasoning was subsequently questioned by a two-judge bench of the Supreme Court, in Sangeet v State of Haryana (2013: para 58): A reading of some recent decisions delivered by this Court seems to suggest that the remission power of the appropriate Government has effectively been nullified by awarding sentences of 20 years, 25 years and in some cases without any remission. Is this permissible? Can this Court (or any Court for that matter) restrain the appropriate Government from granting remission of a sentence to a convict? What this Court has done in Swamy Shraddananda and several other cases, by giving a sentence in a capital offence of 20 years or 30 years imprisonment without remission, is to effectively injunct the appropriate Government from exercising its power of remission for the specified period. In our opinion, this issue needs further and greater discussion, but as at present advised, we are of the opinion that this is not permissible. The appropriate Government cannot be told that it is prohibited from granting remission of a sentence. Similarly, a convict cannot be told that he cannot apply for a remission in his sentence, whatever the reason.

A New Form of Life Imprisonment for India? 127 These conflicting opinions became the subject matter of discussion in Union of India v V Sriharan alias Murugan and others (2015), which has now become the leading case on the matter. In it, the Supreme Court was asked to consider whether the Court has the power to substitute the death penalty for imprisonment for life and put this category beyond the application of remission. Because of the divergent views expressed by different benches of the court, and considering the wider interpretation of the provisions of the Constitution and the Code, the Court in Union of India v V Sriharan alias Murugan and others (2014) deemed it fit to refer the matter to the Constitution Bench9 for an authoritative interpretation of law. With regard to sentencing, the question that the Constitution Bench of the Supreme Court was asked to decide was: [W]hether a special category of sentence may be made for the very few cases where the death penalty might be substituted by the punishment of imprisonment for life or imprisonment for a term in excess of fourteen years and to put that category beyond application of remission? (Sriharan 2015: para 1)

On 2 November 2015, the Constitution Court delivered its judgment by answering the question in the affirmative, thereby upholding the ratio in Swamy and overruling Sangeet. However, the verdict was not unanimous, with two out of the five judges dissenting on this aspect. The Court pinned the legitimacy of the imposition of such sentences on a number of arguments. First and foremost, the legality of such sentences lies within the interpretation of the legal provisions itself. According to the Court, the IPC does not prescribe any prohibition on the imposition of imprisonment for any specific period within the prisoner’s life span. Moreover, section 433A of the CrPC only provides for the minimum term of imprisonment a prisoner must complete before the state can grant him remission, thus leaving it open to the courts to impose a maximum term of imprisonment in heinous cases. The Court opined that when the Constitution entrusted the task of adjudicating criminal cases to the institution of the judiciary, then it is well within the power of the court to impose a sentence of life imprisonment for the entirety of one’s life. This reasoning is highlighted in the observation by the Court: Therefore, when in a case where the judicial mind after weighing the pros and cons of the crime committed in a golden scale and keeping in mind the paramount interest of the society and to safeguard it from the unmindful conduct of such offenders, takes a decision to ensure that such offenders don’t deserve to be let loose in the society for a certain period, can it be said that such a decision is impermissible in law. (Sriharan 2015: para 77)

The Court further claimed that, by legitimising such sentences, it was not trying to belittle executive action by the state in the exercise of its statutory 9 

As per Art 145(3) of the Constitution of India of 1950.

128  Madhurima Dhanuka power of remission. The Court was attempting to ensure that when it comes to the question of equation with a judicial pronouncement, such executive action should give due weight and respect to the latter in order to achieve the goals set out in the Constitution. Thus, in cases where, after a detailed analysis, having regard to the proportionality of the crime committed, a court had decided that the offender deserved to be punished with a sentence of life imprisonment until death or for a specific period such a sentence should survive unscathed. The Court reiterated (at para 78): Therefore, in order to ensure that such punishment imposed, which is legally provided for in the Indian Penal Code read along with Criminal Procedure Code to operate without any interruption, the inherent power of the Court concerned should empower the Court in public interest as well as in the interest of the society at large to make it certain that such punishment imposed will operate as imposed by stating that no remission or other such liberal approach come into effect to nullify such imposition.

Secondly, legitimacy was also sought by emphasising victims’ rights over and above those of the accused. The Court opined that, while considering the principles of penology, one should not overlook the plight of victims and the sufferings of the people who die or are maimed at the hands of criminals. The Court considered the reformative aspect of penology, the notion of giving lifers a ‘ray of hope’, but rejected the idea outright, observing that … it must be stated that such ray of hope was much more for the victims who were done to death and whose dependents were to suffer the aftermath with no solace left. Therefore, when the dreams of such victims in whatever manner and extent it was planned, with reference to oneself, his or her dependents and everyone surrounding him was demolished in an unmindful and in some cases in a diabolic manner in total violation of the Rule of Law which is prevailing in an organized society, they cannot be heard to say only their rays of hope should prevail and kept intact. … Therefore, we find no scope to apply the concept of ray of hope to come for the rescue of such hardened, heartless offenders, which if considered in their favour will only result in misplaced sympathy and again will be not be in the interest of the society. Therefore, we reject the said argument outright. (Sriharan 2015: para 88)

This emphasis on victims can also be perceived in the Court’s observations on the compatibility of such sentences with Article 21 of the Constitution. The Court reiterated the observations made in Maru Ram v Union of India (1980) and categorically stated (at para 72): A person who has deprived another person completely of his liberty forever and has endangered the liberty of his family has no right to ask the court to uphold his liberty. Liberty is not a one-sided concept, nor does Article 21 of the Constitution contemplate such a concept. If a person commits a criminal offence and punishment has been given to him by a procedure established by law which is free and fair and where the accused has been fully heard, no question of violation of

A New Form of Life Imprisonment for India? 129 Article 21 arises when the question of punishment is being considered. … Thus, it seems to me that while considering the problem of penology we should not overlook the plight of victimology and the sufferings of the people who die, suffer or are maimed at the hands of criminals.

Having thus established the legitimacy of such sentences, the Court went on to lay down certain guidelines for their imposition. It made clear that such sentences could only be imposed in those cases where the death sentence could be awarded, namely in sections 120B(1), 121, 132, 194, 195A, 302, 305, 307(2), 376A, 376E, 396 and 364A of the IPC. In addition, the power to impose a modified punishment providing for any specific term of incarceration or till the end of the prisoner’s life as an alternate to the death penalty can be exercised only by the High Court and the Supreme Court and not by any other court. Thus, a sentence of life imprisonment without remission can be imposed only in cases where the sentencing court in the first instance awarded the death penalty, and which cases have subsequently come to the High Court for confirmation.10 As the law stands now, India has effectively legitimised sentences that may run for the remainder of a person’s natural life. Such persons have no right to claim statutory remission from the executive. They can, however, invoke the constitutional powers of the executive under Articles 72 and 161 of the Constitution to seek commutation of their sentence. IV.  LIFE IMPRISONMENT WITHOUT REMISSION: A STEP BACKWARDS

To lock up a prisoner for the rest of his life, taking away from him any hope of release and ignoring his capacity for redemption and rehabilitation, is to the serious detriment of human rights and human dignity. Though public protection, retribution and deterrence have been identified as raisons d’être for the imposition of whole life sentences and its grass-root popularity as an alternative to the death penalty (see Appleton and Grøver 2007), there is nothing to say that these considerations cannot be found in a sentence of life imprisonment that allows for a review of the sentence after a certain period. The approach taken in Sriharan, is retributive, with all arguments on reformation being rejected outright. There are many flaws in the reasoning behind Sriharan. This may be why two of the five judges dissented on this issue and delivered a separate judgment. In the following sections, the lacunae in the reasoning adopted by the Court in arriving at its verdict are discussed in the light of this dissent.

10 As per Chapter XXVIII of the CrPC, when the court of sessions passes a sentence of death, the proceedings are submitted to the High Court for confirmation.

130  Madhurima Dhanuka A.  Existence or Lack of Statutory Framework Even though an attempt has been made to interpret the statutory provisions to legitimise sentences of life imprisonment without remission, the arguments lack substance on many fronts. First, if one can read a sentence of life imprisonment without remission into the statute, then why should the sentencing courts be prohibited from awarding them? The Court contends that the sentence can be imposed while remaining within the provisions in the statute itself. If this were true then there should be no prohibition upon the sentencing courts to impose such a sentence. Secondly, if the legislature had so intended, it would have accepted the recommendations made by the Committee on Reforms of the Criminal Justice System in 2003,11 or there would have been corresponding amendments to the CrPC after the Criminal Law Amendment Act of 2013 came into force, following the recommendation of the Committee on Amendments to Criminal Law (2013). Thirdly, the interpretation of the hiatus between the death sentence and life imprisonment is also self-contradictory. On the one hand, the Court reaffirms that a sentence of life imprisonment means detention until the end of one’s natural life, on the other hand it talks about the hiatus between the death sentence and life imprisonment which is equated at 14 years. Either there is such a gap or there isn’t. And if there is no statutory framework, how far is it justified for the courts to impose such a punishment? The court has, in a number of judgments, refrained from treading into this sphere. In Prem Chand Garg and another v Excise Commissioner, UP and others (1963), the Court observed that while its powers are no doubt very wide and they are intended to be and will always be exercised in the interest of justice, any order that the court makes must not only be consistent with the fundamental rights guaranteed by the Constitution, but it also cannot be inconsistent with the substantive provisions of the relevant statutory laws. More recently in 2015, in Vikram Singh alias Vicky and another v Union of India and others (2015), the Court had observed that prescribing punishment is the function of the legislature and not the courts. By accepting this, courts show deference to the legislative will and wisdom. They are therefore slow to upset enacted provisions dealing with the quantum of punishment prescribed for different offences. In sum, the interpretation of the statutory framework to include life imprisonment without remission is unreasonable. It should be reconsidered.

11 

See Committee of Reforms on Criminal Justice System (2003) Ch 14.7.

A New Form of Life Imprisonment for India? 131 B.  Assumption of Early Release in 14 Years: The Reality While the court has almost always asserted that there is no vested right to be released after the completion of 14 years, in Sriharan, as in Swamy, we see that the presumption is that lifers are released upon completion of 14 years. Interestingly, no reliance has been placed on any statistical data to support this proposition. The only statistics to which the Court refers in its 174 page verdict were from the 1970s, and only for the number of murders that took place against the number of persons hanged. While the unavailability of detailed national data in this regard only adds to the lack of clarity,12 the courts have always had the option of seeking reports from all states if it so required. Prison statistics show that 4,146 lifers13 were released early during 2013. This figure is quite low, amounting only to 5.86 per cent of all cases (National Crime Records Bureau 2013: 91). Let us also review data from one state, West Bengal.14 Data from 2011 to 2013 indicates that, of the 590 applications that were made by life prisoners during this period for premature release, recommendations for release were made only in 290 cases, and only in 254 was the sentence actually remitted. Also of the 44 inmates whose sentences were remitted early during 2014:15 —— —— —— —— —— —— —— —— ——

two inmates had completed more than 26 years’ imprisonment; eight inmates completed more than 24 years’ imprisonment; three inmates completed more than 23 years’ imprisonment; two inmates completed more than 22 years’ imprisonment; four inmates completed 21 years’ imprisonment; five inmates completed more than 20 years’ imprisonment; 15 inmates completed more than 19 years’ imprisonment; 12 inmates completed more than 18 years’ imprisonment; and three inmates completed more than 16 years’ imprisonment.

These data indicate, first, that not all applications that are made for premature release are accepted by the competent authority. Secondly, none

12  The Prison Statistics India, which is compiled by the National Crime Record Bureau has information on how many persons are undergoing life imprisonment at the end of each year and how many persons were released prematurely. It does not, however, provide information on the period of detention of life sentence prisoners nor how many lifers were released prematurely. 13 The data refer to inmates but from the context it is clear that it means life sentence prisoners. 14  Data provided by personal communications from Directorate of Correctional Services, West Bengal, India between years 2009 and 2015 (on file with the author). 15  Data provided by personal communications from Directorate of Correctional Services, West Bengal, India (on file with the author).

132  Madhurima Dhanuka of the inmates whose sentences were remitted served only 14 years of imprisonment. While this represents the situation in only one state, there are no indications to suggest that the story would be different in other states. This aspect was also discussed in the Law Commission of India’s report on the death penalty, which observed in the concluding remarks that life imprisonment under Indian law means imprisonment until death subject to just remissions which, in many states in cases of serious crimes, are granted only after many years of imprisonment, ranging from 30 to 60 years (Law Commission of India 2015: 213). Therefore, to say that in India a sentence of life imprisonment equates to a sentence of 14 years is not only a misconception, but will most likely not be substantiated by any statistics. Another argument in support of this proposition is that, even though the grant of remission is statutory, certain checks have been built into it to prevent arbitrary decision- making. To ensure that the checks are adhered to, the Supreme Court has held in a number of decisions that the power of remission cannot be exercised arbitrarily, and that the decision to grant remission has to be well informed, reasonable and fair to all concerned (Mohinder Singh v State of Punjab 2013 and Sangeet and another v State of Haryana 2013). An advisory to this effect was also circulated by the Ministry of Home Affairs in 2013, requesting states to scrupulously follow the procedural and substantive checks prescribed under statutory law, while considering whether to grant remission on a case-by-case basis and not in a wholesale manner. Thus, it is not possible to conclude that a sentence of life imprisonment is normally a sentence of 14 years. Reliance upon this notion in Sriharan only highlights the sense of distrust the courts seem to have for the executive, in as much as its power to grant remission is concerned. The Court in Sriharan has discussed at length the lack of uniformity in the granting of remission, but not once discussed the need to frame guidelines for the granting of remission by the executive. This argument is also made in the dissenting opinion delivered by Justice UU Lalit, who stated that, if the experience in practice shows that remissions are granted in an unsound manner, the matter can be corrected by judicial review. He further stated that, ‘after completion of the statutory period of 14 years, it is for the executive to consider and pass appropriate orders. Such orders would inter alia consider not only the gravity of the crime but also other circumstances, including whether the prisoner has now been [rehabilitated] and is ready to be assimilated in society. In such circumstances it would not be proper to prohibit such consideration by the executive’. This sense of distrust in the decision-making process of the executive in granting remission, and the belief that the inmate, irrespective of the gravity and nature of crime committed, will be released after 14 years’ imprisonment are ill founded. One should not be swayed by such subjective beliefs while pronouncing judgments that will have far-reaching consequences for the criminal justice system of a nation.

A New Form of Life Imprisonment for India? 133 C.  Practical Implications Throughout the verdict in Sriharan (2015), there were constant references to victims and to setting the balance right, but there was no discussion whatsoever of the practical implications of the verdict on lifers and death row prisoners across India. After this decision, will every death row prisoner approach the appellate courts with a sense of fear? Would he stand a better chance of being granted remission under section 433A CrPC, rather than running the risk of getting his sentence commuted to one of life imprisonment without remission? The order leaves death row prisoners in a better position than lifers, as it gives the former a better chance of early release from prison than the latter. This aspect was highlighted in the dissenting opinion (at para 70): Further, in theory it is possible to say that even in cases where court were to find that the offence belonged to the category of ‘rarest of rare’ and deserved death penalty, such death convicts can still be granted benefit under Section 432/433 of CrPC. In fact, Section 433A contemplates such a situation. On the other hand, if the court were to find that the case did not belong to the ‘rarest of rare’ category and were to put the matter beyond any remissions, the prisoner in the latter category would stand being denied the benefit which even the prisoner of the level of a death convict could possibly be granted under Section 432/433 of the CrPC. The one who in the opinion of the Court deserved death sentence can thus get the benefit but the one whose case fell short to meet the criteria of ‘rarest of rare’ and the Court was hesitant to grant death sentence, would languish in Jail for entirety of his life, without any remission.

Moreover, those prisoners who had their death sentences commuted to life imprisonment by the High Court and were considering appealing to the Supreme Court claiming innocence, might not choose to go down that road anymore. With a high risk of being sentenced to life imprisonment without remission, they might choose to serve out their sentence of life imprisonment with ordinary considerations for remission, lest they lose on appeal and the Supreme Court commutes the sentence to life without remission. Also, this verdict might have a trickle-down effect. Sentencing courts could use the death sentence more liberally, knowing that the High Court can commute the same into life imprisonment without remission sentences; thus ensuring that the accused would never be released. This would indirectly increase the number of cases where death sentences are awarded, even where they might not meet the ‘rarest of rare’ criteria (Bachan Singh v State of Punjab 1980). Another aspect of the judgment is its complete disregard for the finer details of how life sentences are implemented. All the attention has been on life imprisonment and remission, but there is no discussion of parole or furlough, and suspension or reprieve from life sentences and whether there would be any prohibitions on these too. It almost seems as if the judges did

134  Madhurima Dhanuka not seem to have working knowledge about the functioning of the system. And this contributes to making the verdict fundamentally impractical. D.  An Alternative to the Death Sentence No sentence should be defended just on the basis of it being the next best alternative to another sentence, without questioning the merits of the sentence itself. This is precisely what has been done in both Sriharan and Swamy, where this option was explored only on the premise of reducing the hiatus between the sentence of death and a sentence of life imprisonment that is presumably for 14 years. Emphasis was placed on adopting a course where ‘heartless, hardened, money minded, lecherous, paid assassins’ (Sriharan 2015: para 69) are not awarded the death penalty, but at the same time may be kept incarcerated in order to protect the common man and society at large. Thus, at all points the Court was looking to create a sentence that would affectively replace the death penalty. While the irreversible nature of a death sentence was considered, no reference was made to the ill effects of a whole life sentence. The ramifications of a sentence of life imprisonment without possibility of release are many; however, none of this finds mention in any of the court’s judgments on this issue. While the court has discussed at length the constitutionality of the death sentence (Bachan Singh v State of Punjab 1980), no emphasis has been placed on the impact on the prisoner of a sentence of life imprisonment without remission. Moreover, strangely, no reference has been made in the verdict to the Law Commission of India’s report on the death penalty (Law Commission of India 2015). The report, while recommending the abolition of death penalty for all offences apart from terrorism-related offences, did not even discuss the possibility of replacing it with a sentence of life imprisonment without remission. At this juncture, one must discuss the true meaning of a sentence of life imprisonment without remission. To a large extent such sentences can be equated to a sentence of life imprisonment without the possibility of parole (LWOP), popular in the USA and elsewhere. LWOP entails a sentence of imprisonment where the sentence cannot be suspended, deferred or commuted by any judicial authority or by any board, prison terms, parole or sentence review, thus confining the person to prison for the rest of his life (Appleton and Grøver 2007). It has been stated that among the various forms of life sentences, LWOP can be regarded as the ‘penultimate penalty’ (Wright 1991) or the ‘severest sanction’ (Appleton and Grøver 2007) that a court can ever pass in the absence of the death penalty. It is a sentence of life for ‘life’, as persons so sentenced spend the entire remaining span of their lives in prison, saddled with all the restrictions that flow from incarceration.

A New Form of Life Imprisonment for India? 135 LWOP may be perceived as a harsher punishment than death, as the position of a person sentenced to LWOP can be compared to one on an indefinite death row,16 where the prisoner is destroyed by the wait for death long before he really dies. In either case—a death sentence or LWOP—death comes while under the control of state authority, whereas in the first instance it is predetermined, in the latter it is a future unknown date (Sheleff 1987). Thus, a long-term prisoner denied the chance of early release might well be considered to be in as bad a condition as someone condemned to execution. Though very few countries around the world have substituted LWOP as a mandatory penalty to replace capital punishment (Appleton and Grøver 2007), LWOP has gained acceptance in some parts of the world as a severe penalty that can be imposed in lieu of a sentence of death. This too seems to be the case in the Indian context as well, as is apparent from the view of the Court on this issue. E.  Penological Considerations Major modern international human rights instruments do not deal with sentencing directly. Punishment finds mention in the negative sense in that cruel, unusual, inhuman and degrading punishments are outlawed, and in a positive sense in that they cast a positive duty on the state to structure its penal systems with the ‘rehabilitation’ of sentenced adult prisoners as an objective. Important international instruments to which India has acceded, such as the International Covenant on Civil and Political Rights (ICCPR), not only require State Parties to ‘treat all persons deprived of their liberty with humanity and with respect for the inherent dignity of the human person’ but also emphasise their positive duty to structure their penal systems with the ‘social rehabilitation’ of sentenced prisoners as their primary objective (Article 10 of the ICCPR). This notion is also reflected under Indian law. While Article 21 of the Indian Constitution enshrines the right to live with human dignity,17 the reformative approach is reflected in the observations made by the Court in Mohammad Giasuddin v State of Andhra Pradesh (1977: paras 5, 20): Progressive criminologists across the world will agree that the Gandhian diagnosis of offenders as patients and his conception of prisons as hospitals—mental and moral—is the key to the pathology of delinquency and the therapeutic role of punishment. 16  A survey among death row inmates, found that LWOP is considered a worse sanction than death (Wright 1991). 17 In Francis Coralie Mullin v Administrator, Union Territory of Delhi (1981), the Court held that the right to life enshrined in Art 21 cannot be restricted to mere animal existence. It means something much more than just physical survival. The right to life includes the right to live with human dignity.

136  Madhurima Dhanuka Modern penology regards crime and criminal as equally material when the right sentence has to be picked out. It turns the focus not only on the crime, but also on the criminal and seeks to personalise the punishment so that the reformist component is as much operative as the deterrent element.

The emphasis on reformation can also be found in the components of a proper sentence as summed up by the Law Commission of India (1972: 56): A proper sentence is a composite of many factors, including the nature of the offence, the circumstances—extenuating or aggravating—of the offence, the prior criminal record, if any, of the offender, the age of the offender, the professional and social record of the offender, the background of the offender with reference to education, home life, sobriety and social adjustment, the emotional and mental condition of the offender, the prospect for the re-habilitation of the offender, the possibility of a return of the offender to normal life in the community, the possibility of treatment or of training of the offender, the possibility that the sentence may serve as a deterrent to crime by this offender, or by others and the present community need, if any for such a deterrent in respect to the particular type of offence involved.

In addition to numerous judicial pronouncements of the Supreme Court,18 the recent Law Commission of India (2015) report on the death penalty has emphasised that offenders are capable of change, and that once the circumstances that led to the commission of the crime are removed, they can lead normal lives. However, none of these ideological or humane considerations have found their way into the judgment in Sriharan, with the Court refusing to accept the possibility of reformation of a prisoner. This can be construed from the following rhetorical question: [S]hould the country take the risk of innocent lives being lost at the hands of criminals committing heinous crimes in the holy hope or wishful thinking that one day or the other, a criminal, however dangerous or callous he may be, will reform himself? (Sriharan 2015: para 72)

Additionally, emphasis was placed on the lack of necessary facilities, education and climate for ensuring reformation of an offender. Regrettably, this was based an observation made by the Court in 1980, in Maru Ram (at 1251): It is true that there appears to be a modern trend of giving punishment a colour of reformation so that stress may be laid on the reformation of the criminal rather than his confinement in jail which is an ideal objective. At the same time, it cannot be gainsaid that such an objective cannot be achieved without mustering the necessary facilities, the requisite education and the appropriate climate which must

18  For detail see Sunil Batra v Delhi Admn (1978); Bachan Singh v State of Punjab (1980); Maru Ram v Union of India (1980); Santosh Kumar Satishbhushan Bariyar v State of Maharashtra (2009).

A New Form of Life Imprisonment for India? 137 be created to foster a sense of repentance and penitence in a criminal so that he may undergo such a mental or psychological revolution that he realizes the consequences of playing with human lives. In the world of today and particularly in our country, this ideal is yet to be achieved and, in fact, with all our efforts it will take us a long time to reach this sacred goal.

It is peculiar that the Court relied on an observation made 35 years ago, instead of considering the facilities available for reformation in the present day. A close examination of the statistics (National Crime Records Bureau 2014: 164) would have revealed that the expenditure incurred by all federal states during the year 2014–2015 on vocational/educational training and welfare activities was 219.75 million rupees (approximately US$3.3 million). This is in contrast to the statistics for 1995,19 where the total expenditure on both counts was merely 6.6 million rupees (approximately US$0.99 million) (National Crime Records Bureau 1995: 81). If in 1995 the amount was so frugal, then one can only assume that in the 1980s, when the Maru Ram verdict was delivered, the expenditure incurred by states towards rehabilitative facilities would have been negligible, if not nil. To base an opinion on such dated observations, without properly verifying the subsequent developments, is unacceptable. The approach of the Court appears to have been anachronistic. Another important aspect that is missing is that of ensuring uniformity and consistency in imposing sentences of life imprisonment without remission. While the Court admitted that there has been lack of uniformity when imposing death sentences in India,20 no framework or guidelines were discussed that would ensure consistency when imposing life sentences without remission. Unless the Court also reviews this aspect, it will result in prisoners being sentenced to varied lengths of imprisonment in a highly inconsistent manner. V. CONCLUSION

At a time when the punishment of life imprisonment per se is being challenged, the debate in India regarding life imprisonment without remission as an acceptable alternative to the death penalty is anachronistic. It appears to be a step backwards towards the retributive theory of criminal justice. While the Supreme Court has supported the move away from imposing capital punishment, in its haste it has paid no attention to the ground on which the alternative of unrestricted life imprisonment is constructed. This may very well turn out to be quicksand, which may swallow the very 19 

The National Crime Record Bureau published the first Prison Statistics India in 1995. Court placed reliance on a report compiled jointly by Amnesty International India and People’s Union for Civil Liberties, Tamil Nadu (2008). 20  The

138  Madhurima Dhanuka constitutional values that we have come to cherish. Regrettably, the Court has failed to take into account the consequences of an unrestricted period of incarceration on the physical and psychological well-being of a prisoner. By deeply distrusting the potential of people to change and failing to recognise that constant striving towards self-improvement has been central to social change, Indian penal policy seems to be slipping backwards towards the retributive goals of punishment, instead of being progressive and creating an environment conducive to reform. What underlies Sriharan is the strong sense that sentencing is an end in itself, with no consideration of the consequences. With no hope of release, what will be the incentive for a prisoner to live each day? What will motivate him to change? Would he prefer to end his life himself, instead of ‘dying a bit inside’ each day? Furthermore, as has been quoted in Mauer, King and Young (2004: 1): A crime prevention policy which accepts keeping a prisoner for life even if he is no longer a danger to society would be compatible neither with modern principles on the treatment of prisoners during the execution of their sentence nor with the idea of the reintegration of offenders into society.

The recent judicial discourse on life imprisonment in India has raised many issues that must be addressed if human dignity is to prevail over purely retributive and deterrence based ideologies. One can only hope that the Indian Supreme Court will reconsider these aspects soon, but until it does, the sentence of life imprisonment without possibility of remission is here to stay. REFERENCES

Amnesty International India and People’s Union for Civil Liberties, Tamil Nadu (2008) Lethal Lottery, the Death Penalty in India. Available online at www.amnesty.org/en/report/info/ASA20/007/2008 (accessed 1 October 2015). Appleton, C and Grøver, B (2007) ‘The Pros and Cons of Life without Parole’ British Journal of Criminology, 47, 597. Batra, B (2010) ‘Life imprisonment and premature release: Nalini’s case is a timely reminder’. Available online at www.lawandotherthings.blogspot. co.uk/2010/03/life-imprisonment-premature-release.html (accessed 1 October 2015). Bureau for Police Research and Development (2003) Model Prison Manual 2003. Available online at www.bprd.nic.in/write readdata/linkimages/1445424768-content%20%20chapters.pdf (accessed 1 October 015).

A New Form of Life Imprisonment for India? 139 Committee on Amendments to Criminal Law (2013) Report of the Committee on Amendments to Criminal Law available online at www.thehindu. com/multimedia/archive/01340/Justice_Verma_Comm_1340438a.pdf (accessed 16 December 2015). Committee on Reforms of Criminal Justice System (2003) Report, vol 1, Ministry of Home Affairs, Government of India. Available online at www.mha.nic.in/hindi/sites/upload_files/mhahindi/files/pdf/criminal_ justice_system.pdf, (accessed 1 October 2015). Law Commission of India (1972), The Trial and Punishment of Social and Economic Offences, Report No 47. Available online at www.law­ commissionofindia.nic.in/1-50/report47.pdf (accessed 18 December 2015). ––— (2014) Consultation Paper on Capital Punishment. Available online at www.lawcommissionofindia.nic.in/views/Consultation%20PaperCapital%20Punishment.doc (accessed 19 December 2015). ––— (2015) The Death Penalty, Report No. 262. Available online at www. lawcommissionofindia.nic.in/reports/Report262.pdf (accessed 1 October 2015). Mauer, M, King, R and Young, MC (2004) The Meaning of ‘Life’: Long Prison Sentences in Context. Available online at www.sentencingproject. org/doc/publications/inc_meaningoflife.pdf (accessed 1 October 2015). Ministry of Home Affairs (2013) ‘Advisory on Section 433 A of Cr.P.C and Restriction on powers of remission or commutation in certain cases’ ­Advisory No. V-17013/2/2013-PR. Available online at www.mha1.nic.in/ PrisonReforms/pdf/Advisory%20on%20433A_0.pdf, (accessed 1 October 2015). National Crime Records Bureau (1995) Prison Statistics India. ­Available online at www.ncrb.nic.in/prisonstatisticarchieve/data/Prison1995/ Prison1995.htm (accessed 19 December 2015). ––— (2013) Prison Statistics India. Available online at www.ncrb.nic.in/­ PSI-2013/PrisonStat2013.htm (accessed 1 October 2015). ––— (2014) Prison Statistics India. Available online at www.ncrb.nic.in/ PSI-2014rev1/PrisonStat2014rev1 (accessed 19 December 2015). National Human Rights Commission (2003) Guidelines on Premature Release of Prisoners. Available online at www.nhrc.nic.in/documents/ prematurerelease.pdf (accessed 1 October 2015). Sheleff, L (1987) Ultimate Penalties: Capital Punishment, Life Imprisonment, Physical Torture (Columbus, Ohio State University Press). Van Zyl Smit, D (2002) Taking Life Imprisonment Seriously in National and International Law (The Hague, Kluwer Law International). Wright, J (1991) ‘Life Without Parole: The View from Death Row’ Criminal Law Bulletin 27, 334.

140  Madhurima Dhanuka TABLE OF CASES

Aftab Ahmed Ansari alias Aftab Ansari v The State of West Bengal (2014) Criminal Appeal Nos 1242–1243 of 2010 Bachan Singh v State of Punjab (1980) 2 SCC 684 CA Pious v State of Kerala (2007) 8 SCC 312 Dalbir Singh and others v State of Punjab (1979) 3 SCC 745 Francis Coralie Mullin v Administrator, Union Territory of Delhi AIR 1981 SC 746 Gopal Vinayak Godse v State of Maharashtra AIR 1961 SC 600 Haru Ghosh v State of West Bengal Criminal Appeal No 1173 of 2008 Kamalanantha v State of Tamil Nadu (2005) 5 SCC 194 Maru Ram v Union of India AIR 1980 SC 2147 Mohammad Giasuddin v State of Andhra Pradesh AIR 1977 SC 1926 Mohd Munna v Union of India (2005) 7 SCC 417 Mohinder Singh v State of Punjab (2013) 3 SCC 294 Naskar (Life Convict) v State of WB (2000) 7 SCC 626 Prakash Dhawal Khairnar (Patil) v State of Maharashtra (2002) 2 SCC 35 Prem Chand Garg and another v Excise Commissioner, UP and others 1963 AIR 996 Ram Anup Singh and others v State of Bihar (2002) 6 SCC 686 Sangeet and another v State of Haryana (2013) 2 SCC 452 Santosh Kumar Satishbhushan Bariyar v State of Maharashtra (2009) 6 SCC 498 Shri Bhagwan v State of Rajasthan (2001) 6 SCC 296 State of Gujarat and another v Hon’ble High Court of Gujarat AIR 1998 SC 3164 State of Madhya Pradesh v Ratan Singh 1976 (3) SCC 470 Subhash Chander v Krishan Lal and others (2001) 4 SCC 458 Sunil Batra v. Delhi Administration (1978) 4 SCC 494 Swamy Shraddananda v State of Karnataka (2008) 13 SCC 767 Union of India v Sriharan alias Murugan and others, 25 April 2014 WP (Crl) No 48 of 2014 Union of India v Sriharan alias Murugan and others, 2 December 2015 WP (Crl) No 48 of 2014 Vikram Singh alias Vicky and another v Union of India and others AIR 2015 SC 3577 Zahid Hussein v State of West Bengal (2001) 3 SCC 750

6 An Administrative Procedure for Life Prisoners: Law and Practice of Royal Pardon in the Netherlands WIENE VAN HATTUM AND SONJA MEIJER

I. INTRODUCTION

I

N THIS CHAPTER we assess the penalty of life imprisonment (‘levens­ lange gevangenisstraf’, Article 10(1) Criminal Code 1881) in the part of the Kingdom of the Netherlands which is on the European continent. As Table 6.1 shows, life imprisonment has not been used very often: approximately 51 times between 1870 and 1945, and not at all during the 1970s. Since 2000, however, an extraordinary and explosive growth in the use of life imprisonment can be seen. This chapter first explores the imposition and enforcement of life sentences. It then examines the termination of life sentences in the Netherlands, both de facto and de jure. Finally, it highlights key problems with the Dutch administrative review procedure for life prisoners, particularly in the light of the European Convention on Human Rights (ECHR). II.  THE IMPOSITION AND ENFORCEMENT OF A LIFE SENTENCE

Life imprisonment was introduced in the Netherlands in 1870, to replace the death penalty. Before doing so the Dutch Parliament debated the nature of the life sanction extensively (Parliamentary Proceedings II 1869/70, 80: 1463–77 and 1479–92). The life sentence, introduced by the French in 1810, had been abolished in December 1813, immediately after the French left the Netherlands, after which the maximum length of a fixed-term prison sentence was 20 years. In the debate that took place in May 1870, some Members of Parliament considered a life sentence too lenient, while others regarded it as too severe—even more severe than the death penalty (Parliamentary Proceedings II 1869/70, 80: 1485).

142  Wiene van Hattum and Sonja Meijer Another objection was that a life term would lead to significant inequality, since the length of the time served would depend on the prisoner’s age. However, a majority of Members of Parliament considered a penalty comparable to the death penalty to be a necessity, because, like the death penalty, the life sentence was intended to give the state a means to defend itself against the most dangerous criminals. As a compromise between the two approaches, it was decided that a life prisoner would not be excluded from the possibility of a royal pardon (Van Hattum 2009a: 311−29). Thus, the sentence of life imprisonment was included into the Criminal Code by way of statute, although only for a limited number of offences. The common factor among these offences was the ‘intention to kill’ and the victim’s death: for example, ‘premeditated and intentional deprivation of another person’s life’ or, in short, ‘murder’ (Article 289 of the Criminal Code) and ‘intentional deprivation of another person’s life while committing robbery’ or, in short, ‘aggravated manslaughter’ (Article 288 of the Criminal Code). In such cases, however, life imprisonment was not mandatory; the judge could decide to impose a fixed term of imprisonment. Moreover, if the judge chose to impose a fixed-term prison sentence he had great discretionary power; he could impose a minimum term of between one day and 20 years, which was increased to 30 years as of 1 February 2006 by the Act on the Evaluation of Maximum Sentences of 22 December 2005. The minimum length of a life sentence is not prescribed in Dutch law. Nor does the Dutch legal system provide any reducing mechanism other than pardon: there is no tariff-fixing by the trial judge or a judicial probation procedure after the sentence has been passed. Furthermore, the enforcement of life sentences is not subject to any special regulation. Normally, the life prisoner will serve his sentence in an ordinary prison among other prisoners. In addition to prison sentences, the Dutch legal system also makes provision for a security measure intended to protect society against dangerous offenders. If an offender is found to have been suffering from a mental disorder at the time when he committed the offence, the law, since 1928, has provided for a security measure that can last a lifetime. This measure is called ‘detention under a hospital order’ (terbeschikkingstelling or ‘TBS’).1 It is intended to safeguard society as well as to treat the offender (Article 2 of Principles Act Detainees under Hospital Order of 25 June 1997). The court may extend the period of detention for as long as the danger that the

1  Detention under a hospital order may be imposed when, as a consequence of his disorder, the suspect cannot be held responsible for the crime at all or only in part. In the event that the suspect can be held responsible for the crime, even only partially or only to a very limited extent, the judge may choose to impose a prison sentence, including a life sentence, provided that that punishment can be imposed in respect of the crime in question (Article 37a Criminal Code).

An Administrative Procedure for Life Prisoners 143 offender will reoffend remains (Article 38e of the Criminal Code).2 At least every two years the court must determine whether such danger still exists and thus may extend the measure by a maximum of one or two years at a time (Article 38d of the Criminal Code). A sentence regularly imposed in cases involving extremely serious crimes is the combination of a fixed-term prison sentence plus detention under a hospital order. In the past criticism has been expressed in the legal literature of the imposition of extremely long penalties in combination with detention under a hospital order, because in this way judges would express scepticism about whether the measures were being applied properly (Röling 1957; 1958). To date, sentences of 20 to 30 years imprisonment, combined with a hospital order have become common3 and, surprisingly, have received very little criticism. The Dutch Supreme Court has ruled, however, that a life sentence cannot be combined with detention under a hospital order. The reason is the difference in the purpose of the two sanctions. Detention under a hospital order aims at reintegration of a person in society while life imprisonment does not have that aim (Dutch Supreme Court 14 March 2006). III.  TERMINATION OF A LIFE SENTENCE, DE FACTO AND DE JURE

A. The Scheme that Applied in Practice until 1987 (the De Facto Review Mechanism) The impact of a life sentence on an individual can be immense and difficult to deal with, not only for life prisoners themselves but also for those who have to enforce that sentence, such as prison staff, the prison director, the probation service and care providers, such as doctors, psychologists, psychiatrists and the medical adviser to the Ministry of Justice. It is difficult to witness great suffering while not being able to offer support and guidance (Waldeck 2011: 57; Piersma 2005). Ever since the 1920s, the organisations involved in the implementation of the sentence have been of the opinion that such a penalty, without any prospect of release, is too onerous for a person to bear (Van Schravendijk 1957). In 1952 a commission chaired by Willem Pompe (1893−1968) was established in order to revise the regulations that governed the conditional release (ie, parole). The Pompe Commission proposed a statutory scheme for the 2  The criterion for the unlimited extension of that measure is ‘the safety of other persons’, or ‘the general safety of persons’. 3  Since 2006, when the maximum of the fixed-term prison penalty was raised from 20 to 30 years, a prison sentence between 20 and 30 years plus TBS has been handed down at least six times (information based on research by Wiene van Hattum and Winnie Volkers in the official database of criminal court decisions, Rechtspraak.nl, between February 2006–December 2015).

144  Wiene van Hattum and Sonja Meijer conditional release of life prisoners: they would, in ­principle, be eligible for conditional release after having served a minimum of 10 years, and the trial court, rather than the Minister, would be responsible for deciding whether to grant conditional release (Bleichrodt 1996: 179; Van Hattum 2009(b): 337−39; Meijer 2012: 293). No such scheme for deciding on the release of life prisoners was ever enacted. The only possible way to reduce a life sentence remained a pardon. The Department of Justice kept track of the progress of life prisoners; officials visited the prisoners; and prison directors made proposals to reduce sentences. In 1957, on instruction of the Minister of Justice, Ivo Samkalden, the Head of the Ministry’s Pardons Branch, O.E. van Schravendijk, investigated the pardon policy for life prisoners under general criminal law (Van Schravendijk 1957). This investigation was related to the large number of persons convicted of political crimes, ie, serious crimes during World War II, and sentenced to death or to life imprisonment. Most death sentences had been commuted to life sentences by means of pardon, and the government felt that these prisoners should have a chance to participate in life in society.4 From this investigation it appeared that since 1886 there had never been a case in which a life sentence had been fully served until death (Van ­Schravendijk 1957). All life prisoners had been granted pardon, before the sentence could destroy their chances of participating in free society. The policy provided that after 15 years, an investigation had to take place as to the possibility of converting the life sentence into a fixed-term sentence, after which release was deemed to be ‘possible’ in virtually all cases, often after admission of the prisoner to a treatment clinic (Van Hattum 2009b). A pardon was granted after an average period of 17 years (Rijksen 1967: 122, 123).5 Only one life prisoner died after 37 years in what was then called a ‘lunatic house’ (now ‘psychiatric hospital’) (Van Schravendijk 1957). In response to the earlier models for granting a pardon, and further to the investigation conducted in 1957, Samkalden decided to develop standard criteria for granting pardons to prisoners sentenced to life imprisonment. The intention was to release them at a point at which they could participate actively in free society before the detrimental effects of the sentence or the prisoner’s advanced age nullified the chance of social rehabilitation. According to the criterion Samkalden proposed to Parliament, pardon would be granted ‘in order to avoid frustration of the prisoner’s chances of rehabilitation’ (Parliamentary Proceedings II 1956/57, 4500: 2307). This was

4 Ultimately almost all war criminals were released after having served approximately 20 years (Belinfante 1978), with the exception of the ‘Breda Three’ (Piersma 2005). 5  Note this is an average. At the time the maximum fixed-term prison sentence was 20 years, with the possibility of release after having served two-thirds, thus the duration of a life sentence was longer than the maximum fixed-term sentence.

An Administrative Procedure for Life Prisoners 145 intended to be a continuation of the policy that had applied earlier. The ‘social rehabilitation criterion’ was now expressly named, as well as the minimum term of the sentence to be served. After 10 years, in accordance with the recommendation of the Pompe Commission, applications for pardon would be considered. That policy applied both to long-term prisoners (serving six years or more) and to life prisoners. Long-term prisoners who had served one-third of their sentence, and life prisoners who had served six years, were transferred to the ‘Penitentiary Selection Centre’. They were clinically examined and then a decision was made as to how to enforce their sentence further and whether a pardon should be considered. In 1978 this procedure was embedded in a Ministerial Circular (Ministry of Justice 1978). In 2000, however, this circular was withdrawn and a new, decentralised, procedure was introduced to coincide with the new Penitentiary Principles Act 1999 coming into force. The Selection Centre had ceased its monitoring in 1998 (Van de Sande 2007: 42). Until then, the pardoning procedure had been based on Royal Decrees (Cornelissen 2013). From 1983 Article 122 of the Dutch Constitution 1815 required that the matter had to be regulated by statute (Van Hattum 2014). This statute, the Pardons Act (Gratiewet), was implemented in 1987. In this Act the two grounds for granting a pardon that had been used in practice were put in writing for the first time.6 The first ground concerned ‘facts the judge had not been able to consider at the time of sentencing’ (Article 2(a) of the Pardons Act). The second ground was intended to continue the pardon policy for long-term and life prisoners. It specified that a pardon could be granted ‘when it has become likely that (further) enforcement of the judicial sentence would not reasonably serve the intended goal of the criminal provision of law involved’ (Article 2(b) of the Pardons Act). Although the text is not exactly the same as the earlier ‘Samkalden-criterion’, it nonetheless becomes clear that the legislator intended to continue the policy as applied before (Parliamentary Papers II 1984/85, 19075, 3: 15). B.  Statutory Scheme (De Jure Review Mechanism) Article 4(1) of the Pardons Act of 1987 stipulated that sentenced persons could apply to have their punishment remitted, decreased or changed by means of a pardon. Article 19 of the Pardons Act provided that a pardon could also be granted ex officio. The right to grant a pardon lies in the hands of ‘the Crown’, ie, the Dutch Minister of Security and Justice and the King, and can be executed only after consultation with an ‘advising judge’ appointed by law (Article 122 of the Constitution). Because the Minister

6 

Parliamentary Papers II 1984/85, 19075, C (Further report): 8.

146  Wiene van Hattum and Sonja Meijer is responsible for the decisions rendered by the King (Article 42(2) of the Constitution),7 the King has no latitude to make any policy in respect of this matter. It is the Minister who decides, and the King approves the Minister’s decision.8 The sentence may be converted into a fixed-term sentence, the duration of which is one-third longer than the time already served in prison. This extra period of time is used for conditional release. Another way of remitting the sentence is to grant a ‘conditional pardon’. The sentence remains life imprisonment and the pardon itself is conditional. If the conditions are not met, the sentence will revert to an unconditional life sentence (Article 13 of the Pardons Act of 1987). The procedure, however, is not public (De Bont and Meijer 2013). Applications for pardon must be submitted in accordance with the procedure stipulated in the Pardons Act, a procedure that has not changed substantially since the introduction of lifelong imprisonment in 1870 (Brood 2009). There are no restrictions on when such an application may be made. Furthermore, the prisoner may resubmit his application. However, Article 4(4)(b) of the Pardons Act stipulates that a second application may only be made after a year has passed since the decision on the prior request.9 The Minister of Security and Justice10 must forward all applications for life sentence pardons to the public prosecutor’s office for a recommendation (Article 5(4) of the Pardons Act). The public prosecutor sends his recommendation to the trial court (the advising judge), which in turn makes a recommendation to the King. The Minister then sends his proposal to grant pardon (or not) to the King, together with both recommendations (Article 9 Pardons Act). The Minister (Article 5(2) of the Pardons Act), the advising judge (Articles 6(1) of the Pardons Act) and the public prosecutor (Articles 5(1) and 6(1) of the Pardons Act) may hear representations from the prisoner. In addition, each of these authorities may make enquiries and obtain information on which to base their advice (Articles 5(1) and 6(1) of the Pardons Act), for example, information on the applicant’s behaviour during his detention and his risk of reoffending. For further psychiatric examination the applicant may be brought to a special diagnostic centre,11 but a clinical examination is also possible.12

7 

‘Ministerial responsibility’ was introduced in 1848. name it is a ‘Royal Decree’: a decision rendered by the King and countersigned by the Minister. 9  In practice, decisions on these requests take two years at the least. 10  This holds true for all pardon applications for sentences of more than six years (Article 8(3) of the Pardons Act). 11  That multidisciplinary examination takes place at the Pieter Baan Centre (PBC) in Utrecht, the Netherlands; the observation lasts seven weeks. 12  For example, Prisoner C, to be discussed below, was transferred to the Pieter Baan Centre in 2005 where he underwent a clinical examination, on which basis a subsequent application for a pardon was filed in 2013. 8  In

An Administrative Procedure for Life Prisoners 147 In the event that the Minister recommends that the King should reject the application, the King will not grant the pardon and the Minister may reject the application by himself—with the legal authorisation of the King (Article 8 of the Pardons Act). There is no legal remedy against such a decision. IV.  THE DE FACTO REVIEW MECHANISM SINCE 1987

A.  Continuation of the Old Policy 1987−2004 In recent years little has been done to utilise the old pardon policy. The last time it was applied in order to socially rehabilitate a life prisoner was in December 1986 (Van Hattum 2009b). Since then a pardon has been granted only once, in 2009 (Forum Levenslang 2011: 23−24). However, the prisoner involved was expected to die within two weeks and for that reason, echoing the European Court of Human Rights (ECtHR) in Vinter and others v United Kingdom (2013: para 127), we do not consider that to be a ‘release’. Nevertheless, for at least a decade beforehand there was no reason to grant a pardon to a life prisoner, mainly since no life sentences had been imposed between 1969 and 1982 (Van Hattum 2009b). During the 1980s, three life sentences were imposed (in 1981, 1984 and 1988), after which nine life sentences were imposed during the 1990s (see the Annex to this chapter). Thus, in accordance with the prevailing policy for pardoning persons serving a life sentence, it was not until 1991 that a life prisoner in the Netherlands was eligible to be considered and assessed for the possibility of release.

B.  The Policy Change In 2004 the Dutch Parliament discussed a change to the Criminal Code, culminating in the enactment of the Act of 22 December 2005, envisaging higher maximum penalties. The length of a life sentence was one of the topics raised. The Minister of Justice, Piet Hein Donner, was questioned by a Member of Parliament about the pardon policy for life prisoners. The Minister denied that such a policy existed. Instead, he emphasised that pardons were almost never granted in cases of life imprisonment (Appendix to Parliamentary Proceedings II 2003/04, 1972). In addition, he explained the difference between a life sentence and a fixed-term sentence. According to the Minister, a life sentence, unlike a fixed-term sentence, lasted ‘until the prisoner’s life ended’ (Parliamentary Papers II 2003/04, 28484, 34: 31; Van Hattum 2013a). On the basis of a proposal put forward by the House of Representatives (Tweede Kamer) the maximum fixed-term prison sentence was increased from 20 to 30 years, in order ‘to reduce the difference between

148  Wiene van Hattum and Sonja Meijer such a sentence and a sentence of life imprisonment’ (Act of 22 December 2005 by which Article 10 of the Criminal Code was amended; Mevis 2012). As a result, also in view of the Minister’s answers, the idea emerged that if the courts choose a life sentence rather than a fixed-term sentence, it would actually last until the prisoner’s death (Van Hattum 2009b).13 The debate in the House of Representatives did not come out of the blue; the topic of ‘life imprisonment’ was broadly discussed in society at the time. Starting in 2000, the number of times that a life sentence was imposed has increased substantially. Since then, 26 perpetrators have been sentenced to life imprisonment in the Netherlands. These 26 life prisoners, together with the 12 who have been sentenced between 1981 and 2000 make a total of 38 life prisoners sentenced in the Netherlands since 1981. Three of them were sentenced abroad and later transferred to the Netherlands to serve their sentences ‘at home’.14 One offender has never been caught; he was tried in absentia. One prisoner escaped and was murdered in a Turkish prison. One had been wrongly convicted and was released after six and a half years. One prisoner was released on compassionate grounds in 2009 and died shortly afterwards. Two other prisoners died in prison.15 In 2014 the Ministry of Justice reported that one prisoner had been brought to the Netherlands from the isle of Bonaire where he had been sentenced to life imprisonment (Appendix to Parliamentary Proceedings II 2013/14, 1336, answer to q ­ uestion 10). This makes a total of 33 life prisoners in Dutch penal institutions on the continent as at 31 December 2015 (see the Annex for an overview). The life prisoner who has served the longest has been incarcerated for almost 33 years, almost twice as long as the average time spent by a life prisoner in the past. The number of times a life sentence has been imposed over the last 15 years has almost quadrupled compared with the number in the last century. The cause of this increase has not yet been explored, but it is assumed that it is related to the call for more stringent penalties and societal feelings of insecurity rather than to the commission of more serious offences.16 The experience with the former pardon policy cannot be a reason to deviate from it. No (serious) recidivism by pardoned life prisoners has occurred 13 Proper research into the old pardon policy has not been carried out by the Ministry (Appendix to Parliamentary Proceedings II 2014/15, 198, answer to question 11). 14  They came from England (in 1994), Germany (in 1998) and Belgium (in 2013). These sentences were converted into, and recognised as Dutch life sentences and executed in the same way. 15  One prisoner died a natural death after detention of 34 years in July 2015 and one committed suicide in 2015 almost immediately after the pronunciation of the sentence. 16 By way of comparison: in the 1970s Southern Moluccans residing in the Netherlands committed several hijackings and kidnappings. At one point two people were even executed before the eyes of the entire nation. The sentence imposed on the perpetrators was 14 years in prison which, at that time, was considered unimaginably strict (Liem 2015).

An Administrative Procedure for Life Prisoners 149 (Van Hattum 2009b). However, not only has the legislature responded to a call for greater repression (with the increase of the maximum prison sentence from 20 to 30 years), the criminal courts also did so, with the number of life sentences handed down peaking in 2004 and 2005 with four and five life sentences imposed respectively (Forum Levenslang 2011: 21). The new enforcement policy was explicitly formulated for the first time17 in 2008, when the State Secretary of Justice made a statement about the nature of the sentence of life imprisonment during a conference organised by the Dutch Council for the Administration of Criminal Justice and Youth Protection (Raad voor de Strafrechtstoepassing en Jeugdbscherming (RSJ)). In the view of the State Secretary, the life sentence should last for the prisoner’s whole life, because the judge decided on life imprisonment instead of the maximum fixed-term prison sentence of 30 years.18 Thus, the enforcement of the sentence was ‘obviously’ not aimed at the reintegration of the individual into society (Albayrak 2008: 4; see also Parliamentary Proceedings II 2008/09, 20: 1555). In October 2009 the Minister (Ernst Hirsch Ballin) and the State Secretary of Justice (Nebahat Albayrak) sent a memorandum to Parliament on the topic of pardoning life prisoners.19 In the memorandum both members of government expressed the opinion that the imposition of a life sentence by the judge was a ‘well-considered decision’. Pardon was, in their view, the mechanism which should be used to change the sentence if necessary. There was no reason to adopt a formal pardon policy (Parliamentary Papers II 2009/10, 32123-VI, 10: 4–5). In the following years the opinion of the members of the government on the topic became harsher. The next Minister (Ivo Opstelten) and his State Secretary (Fred Teeven) pleaded that the social rehabilitation principle laid down by statute (Article 26 of the Principles Act on the Prison System of 1951 as well as Article 2(2) of Penitentiary Principles Act 1999)20 had to be interpreted in such a way that it did not apply to life prisoners (Appendix to Parliamentary Proceedings II 2011/12, 832, answer to question 6; Appendix to Parliamentary Proceedings II 2013/14, 1336, answer to question 7).

17  In 2007 a rule had already been implemented pursuant to which leave for life prisoners in a secure treatment clinic was ‘not possible’ (Rijksoverheid 2007: 5). 18  Neither that State Secretary nor subsequent State Secretaries have differentiated between persons who committed their crimes after 2006 and those who committed them before that year, when the maximum penalty was still 20 years. 19 The memorandum was largely prompted by the significant increase in the number of life sentences, the criticism of the pardon policy put forward by the Dutch Council for the Administration of Criminal Justice and Youth Protection (RSJ 2006 and 2008) and by Forum Levenslang (which started its activities in 2008) and the judgment handed down by the Dutch Supreme Court, 16 June 2009. 20  Article 26 of the Penitentiary Principles Act of 1951, which sets out the social rehabilitation policy, reads: ‘While maintaining the character of the custodial sentence, the enforcement of such sentence must be subservient to every extent possible to the preparation of the person involved, for his return to society’ (emphases added).

150  Wiene van Hattum and Sonja Meijer The State Secretary argued that the principle acquires meaning only at the time that a decision is made to release a life prisoner (Appendix to Parliamentary Proceedings II 2011/12, 832, answer to question 6). Since 2009 the government has informed Members of Parliament that a pardon can be granted ‘only on the basis of the life prisoner’s individual circumstances’. In addition to the ‘retribution component’ and ‘the seriousness of the crime’, other aspects, ‘such as the age of the life prisoner, his medical and psychiatric condition, and risk of recidivism’ were also to be considered (Parliamentary Papers II 2009/10, 32123-VI, 10: 4). Under the policy of Minister Opstelten and State Secretary Teeven, two other criteria were added to this non-exhaustive list: ‘social interests’ and ‘the interests of the victims and surviving relatives’ (Appendix to Parliamentary Proceedings II 2014/15, 198, answer to questions 4 and 5; Teeven 2014). To assess the weight of these criteria it became customary to conduct an ‘impact investigation’ and a ‘victim investigation’ each time a life prisoner submitted a request for a pardon (Van Hattum 2015: 203–06). The impact investigation concerned the extent of unrest in society that might be created by the release of the applicant. The victim investigation concerned the extent of possible suffering of the victims or their families if the applicant were to be released. As the ‘development of the prisoner’ is no longer a consideration, it is no longer considered necessary to assess their psychological and physical development at regular intervals (Appendix to Parliamentary Proceedings II 2011/12, 832, answer to question 5), nor to conduct an official investigation in response to an application for a pardon, with respect to the risk of recidivism.21 This means that the person sentenced to life imprisonment has to prove that he is ready to return to society (Claessen and Meijer 2013: 1115). At the same time it is true that, notwithstanding whatever progress he has made, the investigation of the impact on the victims always will remain powerful arguments against release. This has been shown in the cases of prisoners Y and C, discussed below. Although the underlying principle now is that a life sentence must last until death, according to the State Secretary of Security and Justice the pardon policy does fulfil the requirements formulated in the Vinter case (Appendix to Parliamentary Proceedings II 2013/14, 71; see also the answers that the State Secretary of Security and Justice gave to questions in Appendix to Parliamentary Proceedings II 2014/15, 198). The fact that no pardons have been granted since 1986 does not mean, so he believes, that there is no prospect of release for life prisoners in the Netherlands. The State Secretary referred to the single case of compassionate release, mentioned above, in 2009 (as did the Minister earlier, Appendix to Parliamentary Proceedings II 21  The same holds true with respect to the argument that a possible release would have a too severe impact on society; see letter from the State Secretary of Security and Justice to Prisoner C’s counsel dated 21 July 2011, discussed in Van Hattum (2013b: 1956, 1962).

An Administrative Procedure for Life Prisoners 151 35 30 25 20 15 10 5 1949 1956 1958 1960 1962 1964 1966 1968 1970 1972 1974 1976 1978 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 2014

0

Life Prisoners (sentence irrevocable)

Number of Pardons

Figure 6.1: Number of Life Prisoners in Penal Institutions in the Netherlands since 1957 and Number of Pardons since 1949 Source:  This Figure was compiled by Wiene van Hattum with the help of Veronique Jorna. The information was collected from books, the original files concerning the pardoning procedure of 16 lifers that had been preserved at the Ministry of Justice, newspapers, the so-called ‘List Anker’ (a list of lifers recorded by law firm Anker & Anker), other open sources and (since 1999) from the official database of court decisions (rechtspraak.nl).

2011/12, 3181, answer to question 3).22 Relevant to his point of view is the remark by the Court in Vinter (2013: para 108) ‘that a life sentence does not become irreducible by the mere fact that in practice it may be served in full’ (Teeven 2014: number 61). A consequence of the change of pardon policy is that the number of life prisoners has grown disproportionally and will continue to rise (see ­Figure 6.1 and Table 6.1). C.  Prisoners Y and C Prisoners Y and C were sentenced in 1984 and 1988 respectively, at the time of the old pardon policy.23 Neither prisoner is assumed to pose a threat to society anymore (see District Court of The Hague, 10 July 2014: para 3.4 (vi) and District Court of The Hague, 18 September 2014: para 1.7, respectively). In their cases the two new pardon criteria have become the only reasons for not releasing them. According to the State Secretary, the

22  See also the answers to Van der Steur (VVD) dated 14 August 2012, Appendix to Parliamentary Proceedings II 2011/12, 3181, answer to question 3; and Hirsch Ballin (2010). 23  Prisoners Y and C are numbers 2 and 3 respectively in the Annex to this chapter.

152  Wiene van Hattum and Sonja Meijer Table 6.1:  Number of Irrevocable Life Sentences 1870–2015 and Number of Pardons since 1889 Number of Life Sentences irrevocably imposed between 1870–2015 1870–1945: 51x (approx.) 1946–1950: 6x 1951–1960: 7x 1961–1970: 2x 1971–1980: – 1981–1990: 3x 1991–2000: 10x (8 + 2 from abroad*) 2001–2010: 20x 2011–2015: 5x (4 + 1 from abroad**)

Number of Pardons since 1889 1889–1955: 21x 1946–1950: 1x 1951–1960: 7x 1961–1970: 6x 1971–1980: 1x 1981–1990: 1x 1991–2000: – 2001–2010: 1x*** 2011–2015: –

*  One prisoner from England in 1994 (information from the lawyer of the prisoner, confirmed by the Ministry of Justice in a letter to Forum Levenslang dated 15 May 2013, ref. no 2DSP229113) and one from Germany in 1998 (see District Court The Hague, 25 March 1999). **  From Belgium in 2013 (information from the Ministry of Justice—letter to the Forum Levenslang dated 15 May 2013, ref. no 2DSP- 229113). ***  In 2009, a prisoner who was terminally ill was granted compassionate release (no 7 in Annex 1; Factsheet Forum Levenslang 2011: 23, 24). Source: The source for Table 1 is the same as that for Figure 1. Note that the data rows in Table 1 refer to the date the case became irrevocable and not to the date of imposition as in Annex 1.

heinousness of the offences,24 the suffering caused to the victims and their surviving relatives, and ‘social interests’ justify continuance of the sentence in full (Van Hattum 2015: 204). For these reasons, the State Secretary refused unescorted temporary leave for Prisoner Y, which the clinic had already proposed in 2006, and also recently rejected (again) their requests for pardon, after 32 and 27 years of incarceration respectively. How long the retributive component of the sentence must continue remains unclear. It appears, however—from the court cases that followed—that the judge who provided the advisory opinion to the King (see ‘Statutory scheme’, under section III.B), in both pardon proceedings had considered making a positive recommendation. In both procedures, however, he required that

24  Prisoner Y shot six people at one time in a bar and seriously wounded four others. He claimed to act in self-defence. Psychiatrists found a mental disorder that might diminish his guilt. The judge deemed only the first shot as murder (with premeditation), the only offence that gave rise to a life sentence. Prisoner C killed four people, members of the same (Chinese) family together with another person. He argued he was an accomplice and not the perpetrator. Prisoner C did not speak Dutch at the time of his trial. Three of his killings were ruled as murder. The co-accused, on trial together with Prisoner C, was ultimately acquitted.

An Administrative Procedure for Life Prisoners 153 the return of Y and C respectively to society would be ‘prepared for in a responsible manner’. The advising judge, referring to the ECtHR judgment in Vinter and others v United Kingdom (2013: para 119), did not consider himself able to assess, however, ‘whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds’ (District Court of The Hague, 10 July 2014: para 1.23 (concerning Y) and in District Court of The Hague, 18 September 2014: para 1.1, (concerning C)). In both cases the advising judge noted that no activities aimed at rehabilitation, had thus far been undertaken with the prisoners. This lacuna made it impossible for the advising judge, as stated in both advices to the King, to determine whether continuance of the prison sentence still ‘reasonably serves an objective to be pursued by applying criminal law’, which is the formula of the second ground for pardon in the Pardons Act (see section III.A). In the case of Prisoner Y the advising judge also found that the Ministers’ and the State Secretaries’ refusal since 2006 to grant unsupervised leave was contrary to the agreements made in 2001 as well as to the case law laid down in Vinter (District Court of The Hague, 10 July 2014: para 1.23). In the case of Prisoner C the advising judge was of the opinion that, contrary to Vinter, through no fault of the prisoner, no activities of any kind aimed at his possible rehabilitation had been developed (District Court of The Hague, 18 September 2014: para 1.1). Since the recommendation of the advising judge in the pardon procedure was not decisive, prisoners Y and C turned to the civil court to demonstrate the unlawfulness of their detention. As a result the advice of the advising judge in both cases became public. Both prisoners demanded an immediate start to, or the expansion of, rehabilitation activities (Van Hattum 2014: 2551). As an interim measure, the civil court granted both their claims insofar as it ordered the State ‘to give within eight days the clinic where Y was being detained permission for unescorted leaves on behalf of Y’ (District Court of The Hague, 10 July 2014: para 4) and to start ‘within fourteen days activities aimed at rehabilitation’ for Prisoner C (District Court of The Hague, 18 September 2014: para 4). In the case of Prisoner C, at the time the District Court ordered rehabilitation activities for C the State Secretary had already rejected his application for a pardon, but the civil court considered that fact irrelevant. In the opinion of the judge Prisoner C could submit a new application for a pardon in which he could present, as a new circumstance, any claim in respect of his rehabilitation. In addition to these judicial authorities, in yet another procedure started by Prisoner C, the National Ombudsman criticised the position taken by the State Secretary with respect to the pardon procedure of Prisoner C. He described the procedure as ‘not transparent’ and ‘slow’, and stated that if the State Secretary designated a review procedure, as required by the ECtHR,

154  Wiene van Hattum and Sonja Meijer he should structure the procedure in a way that ensures that the assessment for release is carried out (National Ombudsman 2014: 6−7). Instead, his impression was that the lack of transparency and expedition ‘ensues from the State Secretary’s unwillingness to actually implement the human rights assessment required by the European Court of Human Rights in the Vinter judgment’ (National Ombudsman 2014: 11). In May 2015, the highest penitentiary judge decided that Prisoner C should be granted temporary leave as a means of working towards rehabilitation (Appeals Commission of the Council for the Administration of Criminal Justice and Youth Protection, 19 May 2015).25 The decision was founded on three elements: the Vinter judgment, the statutory Dutch principle of rehabilitation and the recommendation of the advising judge. It also referred to report of the National Ombudsman. This decision, and the decisions by the judge of the civil court in the cases of Prisoners Y and C, prompted the State Secretary, in response to questions posed by a Member of Parliament on 11 June 2015, ‘to assess whether an adjustment in the implementation of life imprisonment could contribute to its sustainability before the court’. He also announced a consultation with the Prosecution, the Judiciary, the Dutch Lawyers Association and the Attorney General of the Supreme Court as well as with victim supporting groups (Appendix to Parliamentary Proceedings II 2014/15, 2542). On 8 July 2015 the State Secretary decided to grant temporary leave to Prisoner C of up to a maximum of eight hours twice a year, under the supervision of at least two guards (Letter to the lawyer of C, nr 665397, on file with the authors). To obtain this leave C has to submit a request containing a day programme on his own initiative. Granting the request will depend upon whether in the opinion of the State Secretary this leave will contribute to the ‘self-reliance, emancipation and self-initiative’ of C. D.  Other Recent Developments The ministerial view of the enforcement of life sentences and the increased number of life prisoners in the Netherlands has led to a new penitentiary policy. Instead of ‘working towards the rehabilitation of the convicted person’, in line with the concept of a humane treatment plan (Vinter and others v United Kingdom 2013: para 113), plans were proposed in 2009 to place life prisoners together in ‘low-stress units’, where they would not have any right to rehabilitation. Instead, more opportunity for recreation would

25  Earlier the Commission expressed a similar view, in a case about forced labour (Appeals Commission of the Council for the Administration of Criminal Justice and Youth Protection, 21 August 2014).

An Administrative Procedure for Life Prisoners 155 be offered to them (Parliamentary Papers II 2009/10, 32123-VI, 10). The Committee for the Prevention of Torture (CPT) warned against this proposed segregation during its visit to the Netherlands in 2011 (CPT 2012: 21). The Dutch government responded by stating that life prisoners would be transferred to such units only on a voluntary basis and that they would remain there together with long-term prisoners, ie, those serving terms of 10 years or more. Moreover, the government answered, ‘being placed in this ward would not mean all activities take place separately from other detainees’ (CPT 2013: 22). In October 2013, a unit for life prisoners was set up in Norgerhaven prison, a prison for maximum of 240 inmates. From October 2013 four life prisoners and around 16 long-term prisoners resided there. However, in May 2015 this ward was closed down because the building was leased to the Norwegian government (letter of the State Secretary to Parliament, dated 19 January 2015, about the negotiations concerning the arrival of Norwegian prisoners, Parliamentary Papers II 2014/15, 24587, 613: 4; see also Liem and Elbers 2015). At the time of writing the prisoners from Norgerhaven prison have been moved to several other prisons. The four life prisoners and almost all of the long-term prisoners asked permission to stay together, but these requests have been rejected.26 Eventually, only the four life prisoners were brought together to the same prison, Zuyder Bos in Heerhugowaard. Finally, the decision in Vinter and others v United Kingdom (2013) and the criticism of the enforcement policy expressed by the various Dutch courts, referred to above, have not dissuaded criminal courts from imposing a life sentence. In one subsequent case the Court of Appeal has upheld a sentence of life imprisonment (Court of Appeal The Hague, 19 January 2015). This opens the possibility for the Dutch Supreme Court to once again consider the compatibility of the Dutch pardon policy with Article 3 of the ECHR, as the legal position is different from the situation in 2009 (Supreme Court, 16 June 2009) and 2011 (Supreme Court, 22 February 2011),27 when the Supreme Court last discussed28 the issue. It should reassess whether the

26  Eighteen prisoners of this unit started proceedings for interim measures against the State in order to prevent the closure of their unit or to obtain their transfer to a wing with similar facilities, such as a garden and extra space (District Court The Hague, 6 March 2015). The claims were rejected, although the verdict held that an ‘adequate alternative detention regime’ should be provided for them. Moreover the appeal judge stated that the State gave the impression that the interests of the life prisoners were of little importance to it (Court of Appeal of The Hague, 14 July 2015: para 8). 27  The Dutch Supreme Court ruled that the persons sentenced to life imprisonment had not yet served such a considerable part of their sentence that they could expect a pardon application to be considered and that it was still too early to be able to determine whether a person serving a life sentence de jure and de facto has no prospects for release. 28 In a decision dated 26 November 2013, shortly after the Vinter judgment, the Dutch Supreme Court did not intervene in the judgment of the Court of Appeal (26 November 2013) that had imposed life imprisonment; it did not discuss the question.

156  Wiene van Hattum and Sonja Meijer c­ urrent policy makes sufficiently clear, at the time the sentence is imposed, as required by the ECtHR (Harakchiev and Tolumov v Bulgaria 2014: para 256), what the prisoner’s prospects of release are and whether it is clear to the prisoner what he should do to enhance his prospects of release. At the same time all eyes are fixed on the Grand Chamber of the European Court that, at the time of writing, is yet to deliver its judgment in the case of Murray v The Netherlands. Murray, who spent 35 years in prisons on Curacao and Aruba, two islands that belonged to the former Dutch Antilles, was a prisoner with mental disabilities. He complained that he was not given the proper treatment to be able to ever regain his freedom. Murray’s lawyer argued, among other things, that proper treatment was a positive obligation of the state. The oral hearing by the Grand Chamber was held on 14 January 2015. On 24 November 2015 a new step towards implementing the Vinter judgment was taken by the District Court in Assen, which decided not to impose a life sentence because of the lack of perspective in the Dutch pardon policy. The Public Prosecution Office appealed against this decision. The decision has received much media attention29 and has further sharpened the debate on life imprisonment in the Netherlands. As a result of this, the political pressure to review the pardon policy as well as the legal position of life prisoners has increased. V.  DEFECTS IN THE ADMINISTRATIVE PROCEDURE IN THE NETHERLANDS

A state’s choice of a specific procedure for reviewing the continued detention of persons serving life sentences, falls outside the scope of the ECtHR, provided the system is not at odds with the basic principles underlying the ECHR (Hutchinson v United Kingdom 2015: para 18). We have illustrated how the pardon policy is applied in practice in the Netherlands and have argued that this practice is not in accordance with these basic principles. In addition, the pardon procedure as a review mechanism has further disadvantages. One conspicuous disadvantage of the pardon procedure in the Netherlands is its political character. There is no judicial supremacy. Only Parliament can call the Minister of Security and Justice to account.30 From the perspective of democratic accountability this could be considered positive, but the disadvantage is that, as a result, metaphorically speaking, the pardon policy blows around according to the prevailing political wind. This

29  See, for example, nos.nl/artikel/2071172-drentse-moordenaar-wil-levenslang-maarrechter-wil-er-niet-aan.html (accessed 14 January 2016). 30  This happened once in the 1970s when the Minister intended to grant a pardon to the last three German war criminals in prison in the Netherlands (Piersma 2005).

An Administrative Procedure for Life Prisoners 157 affects the legal certainty of the prisoner, and also raises questions under Article 7 of the ECHR. It is particularly harsh on life prisoners, such as Y and C, who were sentenced before a policy change and whose penalty changed from a life sentence with a prospect of release into one where ‘life equals life’.31 It is questionable whether, in the current punitive climate, a minister will ever be willing to grant a pardon to a prisoner who is serving a life sentence (De Bont and Meijer 2013: 120, 126). If ministers remain unwilling to do so, in spite of favourable recommendations from the advising judge, they would be acting contrary to the purpose of the Pardons Act, as they would be straying into the field of the quantum of the penalty, a field pre-eminently reserved for the courts (Van Hattum 2014: 2552). In addition to these primary objections, there are other objections against the administrative procedure, as it lacks a number of important procedural safeguards. First, it is up to the most vulnerable party to apply for a pardon. Even though it is possible to grant a pardon ex officio, in the contemporary policy it is up to the life prisoner to apply for it himself. After having submitted his application, he is immediately subjected to the horror and revulsion of the public. In addition, although he may submit an application for a pardon at any time, he may not be in a position to do so. The impact of the sentence to life imprisonment on his psychological and physical condition may well prevent him from taking this action. Furthermore, the pardon procedure does not prescribe to hear the prisoner in person. Secondly, the criteria for granting a pardon (Article 2(b) of the Pardons Act) are vague. The sentenced person has no idea of his chances of success. It is unclear how to plead for a release on the basis of ‘legitimate penal grounds’. Significant further questions remain: How long will the new criteria of ‘public interests’ and ‘the feelings of surviving relatives and victims’ remain solid grounds for rejecting any request for pardon? Who investigates the wishes of victims? And according to what procedure? Thirdly, the physical and psychological development of the sentenced person is not assessed on a regular basis. This raises the question about how a prisoner can demonstrate ‘whether any changes in the life prisoner are so

31  A test, as in Del Río Prada v Spain (2013), might shed more light on this issue. During the detention of Del Rio Prada the rules for remission of the penalty by doing prison labour were changed by case law. This change resulted in nine extra years of imprisonment. The Grand Chamber considered that the applicant had ‘no reason to believe’ that the Court would depart from its previous case law and that this had ‘the effect of modifying the scope of the penalty imposed, to the applicant’s detriment’. It concluded that there had been a violation of Art 7 of the ECHR (Del Rio Prada 2013: para 117, 118). Similarly, Y and C had no reason to believe that the pardon policy—that already had been in use for more than 100 years when the life penalty was imposed on them (in 1984 and 1988)—would be changed by the government in 2004. And one could plead that—as in the case of De Rio Prada—this policy change modified ‘the scope of their penalty’.

158  Wiene van Hattum and Sonja Meijer significant, and such progress towards rehabilitation has been made in the course of the execution of the sentence, that continued detention is no longer justified on legitimate penal grounds’ as described in Vinter and others v United Kingdom (2013: para 119). Moreover, the State Secretary and Minister have argued that it is the state’s responsibility to have an investigation conducted. As a result the question arises, how can those sentenced to life imprisonment demonstrate that they ready to return to society? Fourthly, the procedure is not subject to any time limits. For example, the law does not prescribe a period within which a decision must be rendered. The pardon procedures of Prisoners Y and C both took more than two years to be completed, in spite of the fact that these cases were well known, both legally and factually, at the Ministry of Safety and Justice. Fifthly, the pardon procedure is not public, leaving no possibility for independent assessment. Moreover, transparency and public access could contribute to the social acceptance of release (even more so in case of conditional release; De Bont and Meijer 2013: 127). Lastly, the lack of co-operation between the Ministry of Safety and Justice and other parties produces a poor basis for the prisoner’s successful return to civil society. Rather than a joint investigation to establish whether the final objective can be achieved, the procedure has degenerated into an adversarial stance between the parties. As a result of all these defects, which imply just as many uncertainties, the pardon procedure has become a torment for the applicants. VI.  CONCLUDING THOUGHTS

Our overview of the de facto pardon policy pursued until 1987 shows that the Netherlands had a review mechanism to consider the release of life prisoners, initiated by the government, which functioned reasonably well for over 100 years. That administrative procedure thus appears to have justified its existence. The developments since approximately 2004−2007 make clear, however, that the Dutch policy has not been able to hold its own amidst changes in society. In a more punitive climate, louder calls for retribution and recognition of the dichotomy between the perpetrator and the victim, all amplified by often sensationalist coverage in classic and social media, leave little room to ensure that human rights standards are maintained for those offenders who are guilty of the most heinous crimes. The hardening of the social climate has led to a change in the Dutch policy of pardoning. The current review mechanism has shown itself to be susceptible to the prevailing punitive climate. Although a life sentence can be shortened on the basis of individual circumstances, in the cases of Prisoners Y and C the grounds on which their applications were refused are

An Administrative Procedure for Life Prisoners 159 outside their control. In their cases a test has been applied in which their personal development plays no part. This is contrary to the considerations of the ECtHR in Vinter (2013: para 122). The question is how long the Dutch position will be tenable, all the more so in view of the fact that, although the possibility of release is emphasised in various policy proceedings, prisoners who are serving life sentences are not eligible for any form of intervention aimed at preparing them for a successful return to society. That practice is diametrically opposed to the rehabilitation principle on which the ECtHR has based its case law (Vinter and others v United Kingdom 2013: paras 113−14; Meijer 2015) and makes the prospects of life prisoners unclear and uncertain. REFERENCES

Albayrak, N (2008) ‘Keynote Address’, Conference organised by the Raad voor de Strafrechtstoepassing en Jeugdbescherming [Council for the Administration of Criminal Justice and Youth Protection] ‘De Jaren tellen’ on 6 March 2008, The Hague. Available online at https://www. rsj.nl/actueel/nieuwsberichten/Congresnieuws.aspx (accessed 6 December 2015). Appendix to Parliamentary Proceedings II 2003/04, 1972. ––— 2011/12, 832. ––— 2011/12, 3181. ––— 2013/14, 71. ––— 2013/14, 1336. ––— 2014/15, 198. ––— 2014/15, 2542. Belinfante, AD (1978) In plaats van Bijltjesdag. De geschiedenis van de bijzondere rechtspleging na de Tweede Wereldoorlog (Assen, Van Gorcum). Bleichrodt, FW (1996) Onder voorwaarde. Een onderzoek naar de voorwaardelijke veroordeling en andere voorwaardelijke modaliteiten (­Deventer, Kluwer). Brood, P (2009) Bronnen voor gratieverlening tot 1987 (Den Haag, Instituut voor Nederlandse Geschiedenis). Available online at http://resources. huygens.knaw.nl/broncommentaren/pdf/gratieverlening.pdf (accessed 15 December 2015). Claessen, JAAC and Meijer, S (2013) ‘De levenslange gevangenisstraf: hoe lang nog?’ Nieuwsbrief Strafrecht, 10, 1110–23. Cornelissen, DJGJ (2013) ‘Het advies van de rechter in de gratieprocedure levenslanggestraften’ Justitiële verkenningen, 2, 50–63. CPT (European Committee for the Prevention of Torture) (2012) Report to the Government of the Netherlands on the visit to the Netherlands carried out by the CPT from 10 to 21 October 2011 (Strasbourg: CPT/Inf (2012)

160  Wiene van Hattum and Sonja Meijer 21). Available at http://www.cpt.coe.int/documents/nld/2012-21-inf-eng. htm (accessed 20 November 2015). ––— (2013) Response of the Government of the Netherlands to the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on its visit to the Netherlands from 10 to 21 October 2011 (Strasbourg: CPT/Inf (2013) 22). Available at http://www.cpt.coe.int/documents/nld/2013-22-inf-eng.pdf (accessed 20 November 2015). De Bont, T and Meijer, S (2013) ‘Perspectief voor levenslanggestraften?’ Justitiële verkenningen, 2, 120–36. Forum Levenslang (eds Ten Brinke, JH and Cornelissen, DJGJ) (2011) Factsheet, Feitelijke gegevens over de levenslange gevangenisstraf (Stichting Forum Levenslang). Hirsch Ballin, EHM (2010) ‘De tenuitvoerlegging van de levenslange gevangenisstraf. De duur van de levenslange gevangenisstraf’ Themis, 2, 80. Liem, M and Elbers, M (2015) ‘Long-term prisoners left to dangle’. Available online at leidenlawblog.nl/articles/ (accessed 19 November 2015). Liem, M (2015) ‘Zware misdadiger kan wel veranderen’, Trouw, 10 July. Meijer, S (2012) Openbaar ministerie en tenuitvoerlegging (Nijmegen, Wolf Legal Publishers). ––— (2015) ‘De opmars en evolutie van het resocialisatiebegrip. De betekenis en ontwikkeling van het resocialisatiebegrip in Europese en Nederlandse rechtspraak’, Delikt en Delinkwent, 30, 688–706. Mevis, PAM (2012) ‘(Te) lang opsluiten? De wettelijke begrenzing van de maximumduur van de gevangenisstraf’ Delikt en Delinkwent, 27, 1–21. Ministry of Justice (1978) Gevangeniswezen, Circular No. 133/378, 7 June. National Ombudsman (2014) Report of the Dutch National Ombudsman, 29 December 2014, 2014/222. Available at www.nationaleombudsman.nl (accessed 29 December 2015). Parliamentary Papers II 1984/85, 19075, C (Further report). ––— 1984/85, 19075, 3 (Explanatory notes). ––— 2003/04, 28484, 34. ––— 2009/10, 32123-VI, 10. ––— 2014/15, 24587, 613. Parliamentary Proceedings II 1869/70, 80: 1463–77, 1479–92 and 1485. Available at http://resolver.kb.nl/resolve?urn=sgd%3Ampeg21%3A1869 1870%3A0000297 (19 May 1870) and http://resolver.kb.nl/resolve?urn= sgd%3Ampeg21%3A18691870%3A0000298 20 May 1870 (accessed 21 April 2016). ––— 1956/57, 4500: 2307. ––— 2008/09, 20: 1555. Piersma, H (2005) De drie van Breda, Duitse oorlogsmisdadigers in ­Nederlandse gevangenschap, 1945–1989 (Amsterdam, Balans).

An Administrative Procedure for Life Prisoners 161 Rijksen, R (1967) Vijf jaar tot levenslang: langgestraften in de gevangenis te Breda (Alphen aan de Rijn, N. Samsom). Röling, BVA (1957) Beschouwingen over de ter beschikking stelling en bewaring: Verslag Psychiatrisch Juridisch-Gezelschap van 19 januari (Amsterdam, Van Rossen). ––— (1958) Commentary to Supreme Court’s Decision of 13 May 1958, NJ 1958, 325. RSJ (Raad voor de Strafrechtstoepassing en Jeugdbescherming) [Council for the Administration of Criminal Justice and Youth Protection] (2006) ­Levenslang, Perspectief op verandering [advice to the ­ Government]. Available at https://www.rsj.nl/advies/adviezen/2006 (accessed 6 ­ ­December 2015). ––— (2008) Levenslang, Aanvulling op het advies Levenslang d.d. 1 december 2006 [advice to the Government]. Available at https://www.rsj.nl/ advies/adviezen/2008 (accessed 6 December 2015). Rijksoverheid (2007) Circulair: Toetsingskader verlof terbeschikkinggestelden, 6 maart 2007. Available at https://www.rijksoverheid.nl/ documenten/circulaires/2007/03/06/circulaire-toetsingskader-verlofter–beschikking-gestelden (accessed 6 December 2015). Teeven, F (2014) Analysis of ECrtHR 9 July 2013, Vinter et al. v the United Kingdom, enclosure to the letter dated 24 September 2013, Appendix to Parliamentary Proceedings II 2013/14, 71. van de Sande, L (2007) ‘De tenuitvoerlegging van de levenslange gevangenisstraf: een paradoxale taak. Een beschouwing vanuit de praktijk van het Nederlandse gevangeniswezen’ Ontmoetingen, 13, 39–52. van Hattum, WF (2009a) ‘Het probleem van de levenslange gevangenistraf’ in J Harte, T Verhagen and M Zomer (eds), Most Probably the Best Professor of Forensic Psychiatry, Liber Amicorum Prof Dick Raes (Nijmegen, Wolf Legal Publishers) 311–29. ––— (2009b) ‘In de daad een mens. De gratieprocedure levenslanggestraften: departementaal beleid en magistratelijk toezicht, vroeger en nu’ Delikt en Delinkwent, 24, 325–52. ––— (2013a) ‘De rechter, de minister en de levenslange gevangenisstraf’ Trema, 7, 220–25. ––— (2013b) ‘Levenslang “post Vinter”. Over de gevolgen van de uitspraak van het EHRM van 9 juli 2013 voor de Nederlandse levenslange gevangenisstraf’ Nederlands Juristenblad, 29, 1956–64. ––— (2014) ‘Het recht van gratie, Naar aanleiding van de vonnissen van de Voorzieningenrechter Den Haag van 10 juli en 18 september 2014 inzake de vorderingen van twee levenslanggestraften’ Nederlands Juristenblad, 36, 2551–57. ––— (2015) ‘De rechter, de minister en de levenslange gevangenisstraf, deel 2’ Trema, 7, 200–08.

162  Wiene van Hattum and Sonja Meijer van Schravendijk, OE (1957) ‘Praktijk der levenslange gevangenisstraf. Enige gegevens omtrent het verloop sinds 1886 van de aan commune delinquenten opgelegde levenslange gevangenisstraf’ Maandschrift voor het gevangeniswezen, 8, 194–200. Waldeck, KJJ (2011) ‘Een levenslange gevangenisstraf overleef je niet’ in Forum Levenslang (eds) Factsheet, Feitelijke gegevens over de levenslange gevangenisstraf (Stichting Forum Levenslang). LIST OF CASES

Domestic Cases Supreme Court, 14 March 2006, ECLI:NL:HR:2006:AU5496, NJ 2007, 345 Supreme Court, 16 June 2009, ECLI:NL:HR:2009:BF3741, NJ 2009, 602 Supreme Court, 22 February 2011, ECLI:NL:HR:2011: BO6150, NJ 2012, 608 Supreme Court, 26 November 2013, ECLI:NL:HR:2013:1420 Court of Appeal of The Hague, 19 January 2015, ECLI:NL:GHDHA:2015:37 Court of Appeal of The Hague, 14 July 2015, ECLI:NL:GHDHA:2015:1948 District Court of Assen, 24 November 2015, ECLI:NL:RBNNE:2015:5389 District Court of The Hague, 10 July 2014, ECLI:NL:RBDHA:2014:8409 District Court of The Hague, 18 September 2014, ECLI:NL:RBDHA:2014: 11541 Appeals Commission of the Council for the Administration of ­Criminal ­Justice and Youth Protection, 19 May 2015, 14/3242/GV Appeals Commission of the Council for the Administration of Criminal ­Justice and Youth Protection 21 August 2014, no 14/1296/GA European Court of Human Rights Del Río Prada v Spain App no 42750/09 (21 October 2013) Harakchiev and Tolumov v Bulgaria App nos 15018/11 and 61199/12 (8 July 2014) Hutchinson v United Kingdom App no 57592/08 (3 February 2015) Murray v The Netherlands App no 10511/10 (10 December 2013) Vinter and others v United Kingdom App nos 66069/09, 130/10, 3896/10 (9 July 2013)

An Administrative Procedure for Life Prisoners 163 ANNEX 1: LIST OF THE TOTAL NUMBER OF PRISONERS SERVING AN IRREVOCABLE LIFE SENTENCE IN THE NETHERLANDS AND CONVICTED SINCE 1980a Nr

Crimes

Date of imposition (in first instance)

Date of arrest

Period of detention (31 December 2015) If date of arrest is unknown: ‘>’

1. †

Murder (3x)

10/11/1981

October 1980

34 years, 9 months, died of natural death in July 2015

2.

Murder, (1x) Continuing act of manslaughter (5x)

13/04/1984

April 1983

32 years, 8 months

3.

Participation in murder (3x) Participation in manslaughter (1x)

11/05/1988

September 1987

28 years, 4 months

4.

Murder (3x)

17/01/1990 (England) transferred in 1994

Unknown

> 25 years

5. †

Murder (1x)

28/05/1993 December (in absentia, 1997 escaped from prison after 4 months)

4 months Arrested in Turkey for another crime and was murdered there

6.

Aggravated manslaughter (1x) Attempted manslaughter (2x)

10/06/1993

November 1992

23 years

7. †

Murder (2x)

28/07/1994 (Germany) transferred in 1998

1992

17 years, compassionate release in 2009, died in 2009, shortly after release

8.

Murder (2x)

18/04/1995

Unknown

> 20 years

9.

Participation in murder (4x) Participation in manslaughter (3x)

18/09/1995

Unknown

> 20 years and 2 months

10.

Murder (1x)

15/07/1997

Unknown

> 18 years and 4 months

†  Denotes that the individual died.

164  Wiene van Hattum and Sonja Meijer 11.

Murder (1x)

30/12/1997

Unknown

> 18 years

12.

Murder (1x)

17/02/1998

October 1997

17 years and 9 months

13.

Murder (1x)

11/02/2000

August 1999

16 years and 3 months

14.

Murder (1x)

09/02/2001

March 1998

17 years and 9 months

15.

Participation in murder (3x)

07/06/2002

Unknown

> 13 years and 5 months

16.

Participation in murder (3x)

07/06/2002

Unknown

> 13 years and 5 months

17.

Murder and manslaughter (2x)

11/07/2002

November 2001

14 years

18.

Murder (2x)

19/03/2003

February 2002

13 years and 9 months

19

Murder (7x)

24/3/2003

September 2001

6,5 years; 2/4/2008 execution suspended and on 14/4/2010 acquitted in revision

20.

Murder (2x)

02/05/2003

Unknown

> 12 years

21.

Aggravated manslaughter (3x)

18/12/2003

Unknown

> 12 years

22.

Murder (3x),

25/03/2004

Unknown

> 11 years and 8 months

23.

Murder (2x) Attempted manslaughter (1x)

08/04/2004

Unknown

> 11 years and 7 months

24.

Murder (1x)

11/04/2004

Unknown

> 11 years and 7 months

25.

Murder (3x)

06/10/2004

Unknown

> 11 years and 1 months

26.

Murder (1x)

11/03/2005

Unknown

> 10 years and 8 months

27.

Participation in murder (2x)

14/04/2005

Unknown

> 10 years and 7 month

28.

Aggravated manslaughter (1x)

07/07/2005

Unknown

> 10 years and 4 months

29.

Murder with terroristic intention (1x)

26/07/2005

November 2002

11 years

An Administrative Procedure for Life Prisoners 165 30.

Murder (1x) Attempted murder (3x)

31

25/11/2005

April 2005

10 years and 7 month

14/11/2006 In absentia

−

−

32.

Participation in murder (3x) participation in attempted murder (7x)

26/07/2007

Unknown

> 8 years and 4 months

33.

Participation in murder (3x), participation in attempted murder (7x)

26/07/2007

Unknown

> 8 years and 4 months

34.

Participation in murder (3x) participation in attempted murder (7x)

26/07/2007

Unknown

> 8 years and 4 months

35.

Murder (1x)

07/03/2008

Unknown

> 7 years and 8 months

36.

War crimes (genocide)

23/03/2009

August 2006

9 years and 3 months

37.

Murder (1x)

05/02/2010 (Belgium) transferred in 2013

Unknown

> 5 years and 9 months

38. † Murder (2x)

23/04/2015

October 2012

2 years and 6 months; committed suicide on the date the sentence was pronounced

39.

2000/2001 Transferred to the Netherlands, date unknown

Unknown

Escaped from prison in Bonaire and was arrested again; dates unknown

a 

Murder (2x)

This list was composed by Wiene van Hattum with the help of her students. Note that this Annex 1 refers to the date of imposition and not to the date the case became irrevocable. The number of persons (up to May 2013) is confirmed by the Ministry of Justice (Letter to Forum Levenslang dated 15 May 2013, ref. no 2DSP-229113, on file with the authors).

166

7 Constitutionalising Life Imprisonment without Parole: The Case of Hungary MIKLÓS LÉVAY*

I.  INTRODUCTION: FUNDAMENTAL LEGAL PROVISIONS ON LIFE IMPRISONMENT WITHOUT PAROLE ‘Life imprisonment without parole may only be imposed for a commission of a wilful and violent criminal offence.’ (Article IV(2), second sentence of the Fundamental Law of Hungary, which came into force on 1 January 2012).1

W

ITH THIS PROVISION Hungary presumably became the only country in the world to constitutionalise sentences of life imprisonment without parole. According to the explanation attached to this provision by the legislature, the Fundamental Law ‘does not exclude the ultimate deprivation of liberty, based on a final and binding sentence, and after reasonable consideration of the principles of necessity and proportionality’ (Explanation of the Fundamental Law).2 However, there is nothing special about these criteria, for the imposition of other punishments is also based on the same constitutional requirements. The legislative aim behind the regulation was presumably to prevent the Constitutional Court from annulling the provision of the Penal Code on life imprisonment without parole. This chapter briefly introduces the history of life imprisonment in Hungary, as well as the circumstances of the birth of this provision of the Fundamental Law. It summarises the decision of the Second Chamber of the * The author thanks Anna Doszpoth (PhD student of the Department of Criminology, ­Faculty of Law Eötvös Loránd University, Budapest) for her considerable help with this article. 1 The English text of the Fundamental Law is available on www.alkotmanybirosag.hu (accessed 15 December 2015). 2  Although there is no binding explanation of the Fundamental Law, there is an unofficial, web-based explanation of it by the drafters, which is available at http://net.jogtar.hu/ (accessed 15 December 2015).

168  Miklós Lévay European Court of Human Rights (ECtHR) in the case of Magyar v ­Hungary of 20 May 2014. It also explains the core ideas underlying the Hungarian legislature’s reaction and the respective decisions of the H ­ ungarian Constitutional Court and the Curia (Supreme Court). In the concluding section of the chapter the political, penal policy, human rights, constitutional and implementation implications of whole life imprisonment in H ­ ungary are discussed. II.  DEVELOPMENT OF LIFE IMPRISONMENT IN HUNGARY

Life imprisonment in Hungary has been—with small interruptions—part of the Hungarian penal system since the adoption of the first Criminal Code in 1878, named after Károly Csemegi, who was instrumental in its formulation. Until 1983, however, only one form of life imprisonment existed, the sanction of life imprisonment with parole. Since 1993, provision for the imposition of life imprisonment without parole sentences has been included in the Hungarian Penal Code of 1978.3 From 1983 onwards, the Penal Code of 1978, which was extensively modified after the political and economic regime change of Hungary, included the provision that a prisoner sentenced to life imprisonment cannot be released on parole if he is sentenced to another term of life imprisonment. However, no sentence of life imprisonment without parole was actually imposed under this new provision (Pallagi 2014: 82). Life imprisonment without parole, as a sentence that judges could choose to impose, finally became part of the Penal Code of 1978 on 1 March 1999. A.  Concept and History of Life Imprisonment in Hungary i.  Penal Code of 1978 and its Amendments The Penal Code of 1978 differentiated between two types of imprisonment: life imprisonment and imprisonment for a definite period of time. The ­original version of the Penal Code of 1978 also provided for capital punishment. Life imprisonment was therefore a sanction in its own right and could only be imposed on persons who were above the age of 20 at the time of the commission of the offence. This rule is still the same today. If a sentence of life imprisonment was imposed, eligibility for parole could not be excluded. Para 47 of the Penal Code of 1978 highlighted as explanation that ‘humanity is protected and respected in the provision, which ensures that persons sentenced to life imprisonment cannot be excluded from ­eligibility 3 

The Penal Code of 1978 came into effect on 1 July 1979.

Constitutionalising Life Imprisonment without Parole 169 for parole. This hope motivates the prisoners to behave appropriately in correctional institutions’. According to the original version of the Penal Code of 1978, prisoners could be released on parole after having served a term of 20 years and if it could be presumed beyond reasonable doubt that the aim of the punishment had also been achieved without further incarceration. The duration of parole was 10 years. It has to be noted that for those crimes for which life imprisonment was a competent sentence, the court could choose between three different sanction types: capital punishment, life imprisonment or imprisonment for a term of 10 to 15 years. This was explained in para 40 of the Penal Code of 1978: Life imprisonment is basically the bridge between capital punishment and imprisonment for a definite term. Its imposition is only reasonable, if the purpose of punishment, namely the protection of society does not justify capital punishment, but the continuing separation of the offender from society is however inevitable.

Because of the eligibility for parole for which it provided, this sanction did not actually incorporate an irreversible separation of the offender from society. Between 1979 and 1989, life imprisonment was imposed 119 times by Hungarian courts (Nagy 2005: 178). ii.  The Abolition of Capital Punishment The most important change in the Hungarian penal system during the regime change of 1989–1990 was without doubt the abolition of capital punishment by the Constitutional Court. In its decision of 23/1990 the ­Constitutional Court declared that capital punishment conflicted with the prohibition against any limitation of the essential contents of the rights to life and human dignity. As the Constitutional Court argued, capital punishment resulted not merely in a limitation upon these rights, but eliminated human life and dignity completely and irreversibly. The Constitutional Court therefore declared all relevant provisions in connection with capital punishment null and void. Life imprisonment consequently gained a new status within the penal system. It became the most severe type of punishment in place of capital punishment and was partly regarded as its alternate version, while its status as a sanction in its own right also remained. It was an alternative sanction for certain crimes punishable with imprisonment for a term of 10 to 15 years. The amendment of the Penal Code of 1978 in 1993 modified the previous provisions on eligibility for parole in accordance with rule of law principles. According to the new regulation, in the event that a sentence of life imprisonment was imposed, the sentence also had to establish the earliest date of release for parole. The earliest date on which release on parole—as defined in the provisions of the Penal Code of 1978—could take place was after

170  Miklós Lévay serving a term of between 15 and 25 years in prison. The explanation of the amendment, via para 6 of Law 17 of 1993, pointed out that … the provision, which allows the judges to determine the earliest date of release on parole between 15 and 25 years served in prison, reflects the effort to ensure the requirement of proportionality even for imprisonments for an indefinite term. By determining the earliest date of release, the court does not predict when the prisoner will be eligible for parole, but considering the severity of the crime, its characteristics, the method of perpetration and the eventual accumulation of sanctions, the court determines the earliest date, after which the eligibility for parole might be examined.

iii.  Life Imprisonment without Parole In the history of life imprisonment, the 1998 amendment of the Penal Code of 1978 is unquestionably an important milestone. The modification was carried out by the first Orbán-government (in 1998 the current Prime Minister, Mr Viktor Orbán, had an opportunity for the first time to form a government). One central pledge of the electoral programme of his party (FIDESZ, The Hungarian Civic Party) was that the severity of criminal sanctions would be increased. It was in this context that they proposed the introduction of life imprisonment without parole. After FIDESZ came into power, it amended the Penal Code of 1978 to modify the provisions on life imprisonment, with effect from 1 March 1999. Initially, the power of the court to impose life imprisonment with eligibility for parole remained in the Code. The provision was strengthened, however, as the legislature determined that the earliest date of eligibility for parole to be considered was after having served at least 20 years in prison, while for crimes not subject to a statute of limitations (such as the qualified version of murder) the earliest date for parole was to be after having served at least 30 years in prison. The number of crimes that could be punished with life imprisonment also increased. Thus, eg, the qualified version of illegal drug trafficking was added to the list. The real strengthening of the sanction was, however, that judges could exclude an individual’s eligibility for parole by imposing the sentence of life imprisonment. The provision of the possibility of excluding eligibility for parole did not include any limitations on the judges’ sentencing discretion (Nagy 2001: 35). This was especially problematic, because life imprisonment was not only an alternative sanction to imprisonment for a term of 10 to 15 years, but also now an alternative to imprisonment for a term of 5 to 15 years. Following the modification of the Penal Code of 1978 that came into effect on 1 March 1999, the two sanctions of life imprisonment with the possibility of parole and life imprisonment without parole existed as alternatives. However, the introduction of the latter did not involve a review

Constitutionalising Life Imprisonment without Parole 171 mechanism. Thus, for people sentenced to the sanction of life imprisonment without parole, the only remaining hope was for presidential clemency. However, no one sentenced to life imprisonment without the possibility of parole between 1 January 1999 and 31 December 2014 was granted presidential clemency. B.  Constitutionalising Life Imprisonment Without Parole The 2010 parliamentary election was won by the coalition of FIDESZ and the KDNP, which gained a two-thirds majority in the unicameral Hungarian Parliament. During the election campaign FIDESZ had paid special attention to questions related to public security. The so-called National Cooperation Programme of the new government led by Prime Minister Viktor Orbán emphasised the following in connection with penal policy: After the elections, one of our first steps will be to increase the severity of sanctions. … Perpetrators attacking human life and property will have to face serious punishments. Life imprisonment without parole should be imposed for many further crimes. … The full force of law, longer sentences, and the more frequent use of life imprisonment, together with greater protection of victims, will restrain offenders and make it clear to members of society that Hungary is not a paradise for criminals. (FIDESZ 2010: 46)

This approach not only influenced the drafting of the new Penal Code, but also played an important role during the drafting of the new Constitution (known as the Fundamental Law) with regard to life imprisonment without parole sentences. One organisation participating in the codification phase of the new Constitution was the National Consultative Council (Nemzeti Konzultációs Testület).4 In February 2011 the Council prepared a questionnaire that included the following question: ‘Some people propose that the new Constitution should provide Hungarian courts the opportunity to impose life imprisonment without parole for the most serious crimes. What is your opinion?’ (National Consultative Council 2011a). Questionnaires were sent by mail to all voters and had to be returned within two weeks. Out of the 8,093,000 questionnaires sent out, 916,941—which is 11.3 per cent of the total—were returned before 31 March 2011. An average of 96 per cent of the questionnaires contained valid answers. Importantly, 93 per cent of those who completed the questionnaire, supported life imprisonment 4  The Chair of the Council was József Szájer, representative of the European Parliament’s European People’s Party. The members of the Council were János Csák, Hungarian Ambassador in London, Zsigmond Járai, the then Chair of the Supervisory Council of the Hungarian National Bank, József Pálinkás, the then President of the Hungarian Academy of Sciences and Katalin Szili, former president of the Hungarian Parliament.

172  Miklós Lévay ­ ithout parole sentences becoming part of the new Constitution, 3 per cent w voted against it and 4 per cent chose the answer ‘I cannot answer this question’ (National Consultative Council 2011b). Thus, the most popular reason for the codification phase of the new Constitution regarding the sanction of life imprisonment without parole was the outcome of this questionnaire. It should be noted, however, that the Hungarian branch of the Helsinki Committee for Human Rights warned immediately after the publication of the questionnaire, that although many similar questions (for example in connection with capital punishment) could be asked, which might find support from the public, the provisions of the new Constitution should not necessarily be defined by the majority opinion (Helsinki Committee for Human Rights of Hungary 2011). A non-governmental public policy organisation pointed out the errors in the formulation of the questions: The drafters did not take into account that people filling out this questionnaire are not all lawyers; therefore they are not aware of the differences between life imprisonment and life imprisonment without parole sentences, not even of the exact meaning of serious crimes. Since people filling out the questionnaires have distinctive opinions on these definitions, the answers must be held to be inadequate for any interpretation. (Eötvös Károly Institute 2011)

Using the outcome of the National Consultation as a reference point, Article IV(2) of the new Constitution, which came into effect on 1 January 2012, included the opportunity to impose life imprisonment without parole sentences. The official commentary attached to the relevant provision, Article IV of the Fundamental Law, emphasises that this sanction ‘may only be imposed in case of violent crimes committed with intent’ (Explanation of the Fundamental Law).5 It would, however, not have been necessary to include life imprisonment without parole in the Fundamental Law solely for this reason. The criminal courts of Hungary used to impose this sanction only in case of intentionally committed serious and violent crimes, namely for qualified murder cases (Tóth 2012a: 409). Reading the second sentence of Article IV(2) together with the first one, it may be interpreted as setting the limits of the sanction. According to the first sentence: ‘[N]o one shall be deprived of their liberty, except for reasons stipulated in an Act [of Parliament] and only in accordance with the procedure stipulated in [such] an Act.’ András Jakab, a reputed Hungarian legal scholar, draws the attention to this issue, as he writes that … it cannot be stated that the existence of life imprisonment without parole is mandatory in the Hungarian legal system due to Article IV (2) of the Fundamental Law. On the contrary: it narrows this opportunity and aims only to lay the constitutional foundations for the sanction. (Jakab 2011: 207–08) 5 

See n 2 above.

Constitutionalising Life Imprisonment without Parole 173 C.  Life Imprisonment in the New Penal Code of 2012 In 2012 the Hungarian Parliament adopted a new Penal Code (Law 100 of 2012). It came into effect on 1 July 2013. The Penal Code of 2012 left unchanged the previous provision regarding life imprisonment without parole sentences, which restricted its applicability for persons who were above the age of 20 at the time of the commission of the offence. The two forms of the sanction, as defined by the amendment of 1998, were also unaffected: life imprisonment with the possibility of parole and life imprisonment without parole, where the court excludes the possibility of parole when imposing the sanction of life imprisonment. Life imprisonment is also an alternative sanction to imprisonment for a term of 10 to 20 years, exceptionally for a term of 5 to 20 years.6 The Penal Code of 2012 allows for the imposition of life imprisonment for 22 crimes. If the court does not exclude the possibility of parole, the earliest date at which release might take place will be after a term of between 25 and 40 years has been served. Table 7.1 shows that, compared to the previous provision of the ‘regular’ form of life imprisonment, the term to be served in prison was increased significantly. Furthermore, following release the duration of parole is at least 15 years and no limit to its maximum duration is specified in the Penal Code of 2012. The Penal Code of 2012 does not contain any provisions on the judicial consideration of the circumstances relevant to the exclusion of parole. However, with regard to the relevant provision of the Fundamental Law, the Penal Code stipulates the crimes punishable with life imprisonment for which parole may be excluded. Of the total number of 22 crimes that are punishable with life imprisonment, parole may be excluded in 18 cases

Table 7.1:  Parole Eligibility and Minimum Duration of Parole in Hungary, 1972–2013 Parole Eligibility

Minimum Duration of Parole

1972–30.06.1979

15 years

10 years

1.07.1979–14.05.1993

20 years

10 years

15.05.1993–28.02.1999

15–25 years

10 years

1.03.1999–30.06.2013

20/30 years

15 years

1.07.2013–

25–40 years

min. 15 years

Source: Penal Code 1961, Penal Code 1978, Penal Code 2012.

6  For example, for drug trafficking offences, life imprisonment is an alternative punishment to imprisonment for a term of 5–20 years; section 3 of para 176 of the Penal Code of 2012.

174  Miklós Lévay (for example, crimes against humanity, second degree murder and a qualified version of human trafficking). During the codification of the Penal Code of 2012, no mechanism was established to review the continued enforcement of the life without parole sentence. Presidential clemency therefore remained the only legal option for the suspension of the punishment’s implementation and for eligibility for the possibility of release. This, however, cannot be regarded as a real opportunity for release (on parole or otherwise) as, since the introduction of the provision in 1999, there has been no decision to grant clemency to any prisoners serving a whole life term. Neither criticism appearing in the Hungarian academic literature,7 nor the judgment in Vinter and others v United Kingdom (2013) of the ECtHR8 analysing its merits and importance, led to the legislature establishing a review procedure. This would only take place after the publication of the judgment of the Second Chamber of the ECtHR in Magyar v Hungary on 20 May 2014. III.  MAGYAR v HUNGARY (2014): DECISION OF THE SECOND CHAMBER OF THE EUROPEAN COURT OF HUMAN RIGHTS

In 2002 criminal proceedings were initiated against László Magyar and his nine accomplices in connection with various violent crimes committed against elderly people in many different villages of Hungary. The applicant and his accomplices tied up their victims, beat them or threatened them until they disclosed where their valuables were hidden, and left them tied up alone in their houses. Some of the victims had died soon after the assaults. The long criminal process ended on 28 February 2010, when the Supreme Court in Hungary upheld the first instance sentence imposing life imprisonment without the possibility of parole. After receiving the final judgment, Magyar submitted an application to the ECtHR (Magyar v Hungary 2014). In its decision of 20 May 2014 the Second Chamber of the ECtHR held unanimously that the irreducible life sentence imposed on Magyar violated Article 3 of the European Convention on Human Rights (ECHR) (Magyar v Hungary 2014: para 2). In its decision, the ECtHR referred to the principles defined in its previous decisions in the cases Kafkaris v Cyprus (2008) and Vinter and others v United Kingdom (2013). 7  One of the most significant criticisms against life imprisonment without parole based on principles of criminal law and human rights was expressed by Ferenc Nagy, Professor of Criminal Law of the University of Szeged. See, for example, Nagy (2005 and 2013). See also Tóth (2012b), Karsai (2014), Lévay (2012). 8  See about the Vinter and others v United Kingdom decision, for example, Van Zyl Smit, Weatherby and Creighton (2014).

Constitutionalising Life Imprisonment without Parole 175 First of all, the ECtHR pointed out that Member States must remain free to impose life sentences on adult offenders for especially serious crimes, such as murder. Such a punishment ‘is not in itself incompatible with Article 3 or any other Article of the Convention … particularly so when such a sentence is not mandatory but is imposed by an independent judge after he or she has considered all of the mitigating and aggravating factors which are present in any given case’, as it happened in the current case (Magyar v Hungary 2014: para 47, internal reference omitted). The ECtHR found (at para 48), however, that the imposition of an irreducible life sentence on an adult may raise an issue under Article 3. In this connection the ECtHR emphasised two interconnected aspects. First, a life sentence does not become irreducible by the mere fact that in practice it may be served in full, if there is a de jure and de facto opportunity to reduce the sentence. Secondly, in determining whether a life sentence in a given case can be regarded as irreducible, the ECtHR seeks to ascertain whether a life prisoner can be said to have any prospect of release. Where national law affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, this will be sufficient to satisfy Article 3 of the ECHR. According to the ECtHR, Article 3 must be interpreted as requiring reducibility of the sentence, by means of a review procedure that allows the domestic authorities to consider whether any changes in the behaviour of the life prisoner are so significant, and sufficient progress towards rehabilitation has been made in the course of the sentence, so that that the continued detention can no longer be justified on legitimate penological grounds (Magyar v Hungary 2014: para 50). The ECtHR declared in this regard that, when domestic law does not provide for the possibility of such a review, a whole life sentence will not meet the standards of Article 3 of the ECHR. As a further requirement of high importance, the ECtHR declared that … a whole life prisoner is entitled to know at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought. Consequently, where domestic law does not provide any mechanism or possibility for review of a whole life sentence, the incompatibility with Article 3 on this ground already arises at the moment of the imposition of the whole life sentence and not at a later stage of incarceration. (Magyar v Hungary 2014: para 53, internal reference omitted)

Having studied the respective provisions of the Hungarian legal system and keeping in mind that the applicant was excluded from parole eligibility, the ECtHR decided that a deeper analysis of presidential clemency was necessary. The ECtHR declared that it was not persuaded that the institution of presidential clemency will actually mitigate the punishment, since it has no significant practice in Hungary. Further, no legal provisions could be found regarding which criteria and circumstances should

176  Miklós Lévay be ­considered in connection with prisoners’ application for release. Since neither the Ministry of Justice, nor the President is required to explain the reasons for their decisions, the prisoners cannot be aware of the requirements they must fulfil to be considered for release. Furthermore, the regulation does not guarantee a proper consideration of the changes and the progress towards rehabilitation made by the prisoner. The Court therefore was not persuaded that the applicant’s life sentence could be regarded as reducible for the purposes of Article 3 of the ECHR. The ECtHR accordingly declared (at para 58) that there had been a violation of Article 3 of the ECHR as a result of the inhuman or degrading treatment or punishment of the applicant. In connection with Article 46 of the ECHR, the ECtHR pointed out that the nature of the violation found under Article 3 of the ECHR meant that the respondent state had to reform, preferably by means of legislation, the system of review of whole life sentences.9 In this regard the ECtHR stated (at 71): The mechanism of such a review should guarantee the examination in every particular case of whether the continued detention is justified on legitimate penological grounds and should enable whole life prisoners to foresee, with some degree of precision, what they must do to be considered for release.

After the publication of the decision in the case of Magyar v Hungary (2014),10 the Hungarian Parliament took legislative measures to establish a review and release procedure for the sanction of life imprisonment without parole, by introducing the Act of 2014.11 In the following section of the chapter, the most important details of this Act are discussed.12 IV.  THE NEWLY ESTABLISHED REVIEW AND CLEMENCY PROCEDURE

According to Act 72/2014, once a prisoner sentenced to life imprisonment without parole has served 40 years in prison, an official review and release procedure will be initiated, operated by the ad hoc Clemency Committee. Members of the Committee are selected by the President of the Supreme Court following the recommendation of the Supreme Court’s Criminal Division. Judges of the Supreme Court or Court of Appeal may be elected as members of the Committee. The mandate requires the approval of the

9  According to Art 46 of the ECHR: ‘The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.’ 10  The government submitted an application to the Grand Chamber, but the application was rejected. Therefore the decision became final on 13 October 2014. 11  See para 109 of Law 72 of 2014. The provision related to review and clemency procedure became part of the Prison Code of 2013. 12  Law 72 came into effect on 1 January 2015.

Constitutionalising Life Imprisonment without Parole 177 judge concerned. The Committee carries out a detailed investigation of the ­relevant legal provisions regarding the granting of clemency before it submits its reasoned recommendations to the Ministry of Justice. The Ministry of Justice cannot deviate from the recommendation of the Committee. This means that the Ministry of Justice’s competence is solely the submission of the recommendation prepared by the Council to the President, who then decides whether or not to grant parole. The President is not bound by the recommendation of the Council, and he does not need to give reasons for his decision. If at the end of the obligatory review and clemency procedure the prisoner is not granted parole (and therefore continues his whole life sentence), the obligatory review and clemency procedure must be reopened within two years. A positive effect of the procedure is that it established a review mechanism. This enables whole life prisoners to foresee, already at the point when their sentence is imposed, what they must do to be considered for release and under what conditions. From the point of view of the Strasbourg court case law, and especially from the requirements laid down in the case Magyar v Hungary (2014), it can, however, be regarded as a negative aspect of the procedure, that the President of Hungary takes the ultimate decision regarding release. As the President is not bound by the recommendations of the Clemency Committee, it actually remains unclear which circumstances will be considered by the President. That leads to the further problem that prisoners remain unable to foresee what they must do to be considered for release. For this reason it only seems to be true at first sight that under the new procedures prisoners can be aware of those requirements and can adjust their behaviour accordingly in order to be eligible for release. A further negative aspect of the new legal provision is that the review and clemency procedure may only take place after the prisoner has served 40 years of his punishment. The official reasoning attached to this provision (para 46/B) highlights that this term was defined ‘for legal policy considerations and with respect to the coherence of the Hungarian legal system’. This is a reference to another provision, according to which, if the judge does not exclude eligibility for parole in the judgment imposing life imprisonment, release cannot take place until the lifer has served between 25 and 40 years in prison. Undoubtedly, it is not for the ECtHR to determine when the review procedure should take place.13 It should, however, be noted that some international legal instruments, such as the European Union’s Council Framework Decision 2002/584 of 13 June 2002 on the European Arrest Warrant and the surrender procedure between Member States suggest a

13 

See for example Magyar v Hungary (2014: para 51).

178  Miklós Lévay shorter term for the review procedure.14 From the perspective of a real hope of release as an integral element of human dignity, 40 years in prison seems to be unreasonable. Further, it has to be added that for the 270 prisoners serving life imprisonment with parole eligibility in 2014, the earliest term of release for 26 per cent of them is 30 to 40 years, while the average term of another 43 per cent of the prisoners is 26 to 30 years (personal communication of 23 December 2014 with the Commander of Hungarian Correctional Services). V.  OPINION OF THE CONSTITUTIONAL COURT AND THE CURIA ON LIFE IMPRISONMENT WITHOUT PAROLE

A.  Constitutional Court Order of 3013/2015 Act 72 of 2014 establishing the obligatory review and clemency procedure had an important effect on the outcome of the Constitutional Court’s procedure related to life imprisonment without parole. On 3 April 2014, a judge of a criminal court suspended the trial pending before him and submitted a petition to the Constitutional Court, since it would have been possible to impose life imprisonment in the referred case. According to the opinion of the judge, the provisions of the Penal Code of 1978 and the Penal Code of 2012 defining the rules for life imprisonment without parole were contrary to the Fundamental Law in the light of the ECtHR’s Vinter judgment. He applied for a constitutional examination of the referred provisions and the striking down of the respective provisions of the Penal Codes, according to Article Q(2) of the Fundamental Law, which declares that ‘in order to comply with its obligations under international law, Hungary shall ensure that Hungarian law be in conformity with international law’. The Constitutional Court delivered its decision on 20 January 2015, terminating the proceeding, since the case had become manifestly no longer pertinent (Constitutional Court Order of 3013/2015). The reason was that, because of the new Law on presidential clemency, ‘the legal situation that served as a reason for the submission of the petition, [had] changed ­enormously’. The decision was supported by 13 out of 15 judges of the Constitutional Court. The majority opinion was that the previously detailed review and clemency procedure met the requirements laid down by the ECtHR. The dissenting opinion emphasised, however, that the

14  This Council Framework Decision provides that the execution of an arrest warrant issued in another state may be subject to the condition that the issuing Member State has provisions in its legal system for a review of the penalty or measure imposed, on request or at the latest after 20 years.

Constitutionalising Life Imprisonment without Parole 179 ­ onstitutional Court of Hungary should have examined after a substantive C analysis, whether the obligatory review and clemency procedure introduced by Act 72/2014 met the requirements laid down by the ECtHR. The dissenting opinion further pointed out that the review mechanism does not meet these requirements for two additional reasons. First, the obligatory review and clemency procedure can only take place after the prisoner has served 40 years of his sentence. Secondly, at the end of the review and clemency procedure, the President of Hungary takes the final decision on the granting of release and is not bound by the recommendation of the Clemency Committee. Thus, similarly to the previous legal practice, the person concerned is still not able to foresee the conditions that he must meet in order to be eligible for release.15 B. Uniformity Decision 3/2015 of the Curia of Hungary on the Exclusion of the Possibility of Conditional Release from Life Imprisonment After the judgment of the ECtHR in the case of Magyar v Hungary (2014), the Curia of Hungary, as the judicial forum of final instance in Hungary, initiated a review procedure according to the relevant provision of the ­Hungarian Criminal Procedure Code of 1998. The Chamber of the Curia consisting of five judges declared in its decision of 11 June 2015 (Curia Bfv. II. 1812/2014/18. sz, referred to in Uniformity Decision 3/2015) that the provision of the final and binding sentence excluding the provisional release of Magyar, who had been sentenced to life imprisonment without parole, was to be disregarded and Magyar had to be considered for release on parole after having served 40 years in prison.16 The reasoning of the judgment of the Chamber of the Curia reads: Domestic law may be applied in the case of the applicant only insofar as it stays in line with the judgment of the ECtHR declaring the violations of the Convention. The Chamber of the Curia came to the conclusion that a presidential review and clemency procedure, which does not need to include a reasoning part, does not fulfil the requirements laid down by the ECtHR. For this reason, in line with the findings of the ECtHR, such a procedure can be consistent with the principles of the ECtHR, by which the Chamber of the Curia determines the earliest date of provisional release. According to the opinion of the Chamber, the violations of the Convention can be cured in such a way that in the final judgment the exclusion

15  The dissenting opinion was submitted by Judge Lévay; see Constitutional Court Order of 3013/2015 para 33–56. Judge László Kiss joined the dissenting opinion. Two concurring opinions were attached to it by Judge Czine and Judge Salamon. 16  The operative part of the Uniformity Decision is available in English at www.lb.hu/en/ uniformity-decisions/operative-part-uniformity-decision-no-32015-bje (accessed 22 December 2015).

180  Miklós Lévay from the opportunity of provisional release is not included and at the same time, the earliest date for the provisional release shall be determined by the Chamber of the Curia. (Cited in Gönczi 2015: 498–499)

This decision of the Chamber of the Curia led to heated debates in Hungary. The legal representatives of Magyar indicated that they regarded the earliest date of release after having served 40 years in prison to be in violation of the ECHR, based on the findings of the Magyar v Hungary (2014) case. They have therefore submitted further applications to the Constitutional Court of Hungary and to the ECtHR. The day after the decision of the Chamber of the Curia, members of the Hungarian government declared the decision unacceptable and turned to the Ministry of Justice to start negotiations with the Curia (Tóth 2015). Based on the initiative of the Chair of the Criminal Division of the Curia, the Criminal Committee on the unification of the law of the Curia took a further decision on 1 July 2015 in order to clarify the legal situation. In its new decision, Uniformity Decision 3/2015, the Curia declared in para 1: The exclusion of the possibility of conditional release from life imprisonment is part of the constitutional order and the judicial application and exclusion is not prohibited under any international treaty, provided that the statutory requirements are met. Under the laws in force, the ECtHR’s case law, the Constitutional Court’s decision and the 11 June 2015 review decision of the Curia of Hungary of such exclusion (no. Bfv.II.1812/2014/7), no departure from the established court practice developed on the imposition of life imprisonment without the possibility of parole (a whole life sentence) is warranted.

The reasoning of the Uniform Decision emphasised in the first instance that during the review procedure the Chamber of the Curia consisting of five judges should not have indirectly applied the findings of the ECtHR in the case of Magyar v Hungary (2014). Furthermore, it pointed out that Hungary had fulfilled the obligations imposed on it by the judgment of the ECtHR by introducing the obligatory review and clemency procedure—a view also supported by the Constitutional Court of Hungary. Furthermore, in Magyar v Hungary (2014) the ECtHR did not examine the provision of the Hungarian Penal Code with regard to the exclusion of conditional release of prisoners serving whole life sentences. These decisions have been open to criticism. Gergely Gönci (2015: 499) has commented: This approach is inconsistent with the examination procedure of the ECtHR, which examines the effectiveness and the actual effects of domestic legal provisions, instead of analysing their legal-technical details. And the judicial sentences imposed in Hungary shall be consistent with the principles laid down in the case of Magyar v Hungary (2014).

Constitutionalising Life Imprisonment without Parole 181 VI.  THE STATUS QUO ON LIFE IMPRISONMENT WITHOUT PAROLE IN HUNGARY

According to the opinion of the Hungarian Constitutional Court and of the Curia, the current provisions of the Hungarian Penal Code and the review procedure are in line with the Fundamental Law of Hungary as well as with the ECHR. However, the academic literature on this issue has questioned this solution in the light of principles of human rights and the case law of the ECtHR (Gönczi 2015; Karsai 2014; Lévay 2012; Nagy 2005, 2013; Tóth 2012b). Nevertheless, there are publications to be found in the Hungarian academic literature supporting life imprisonment without parole sentences. One of the main arguments of the proponents is that ‘there is a certain group of criminals, whose resocialisation cannot even be considered, and then the only thing that serves the protection of the society is the application of whole life imprisonment’ (Balla 2014: 57). After the examination of the court cases of persons sentenced to whole life imprisonment, Balla (2014: 56), the author of this passage, came to the conclusion that persons committing a qualified form of murder (for instance, of more than one person) belong to that group of irremediable offenders. Furthermore, one correctional judge has argued that whole life imprisonment should be maintained. However, he also criticised some aspects of the obligatory review and clemency procedure: Whole life imprisonment can be a punishment in line with the principles of the rule of law, and of constitutional, human rights-related and international requirements, if modified accordingly. Its maintenance is reasonable in the future as a guarantee of the principle of proportional punishment and the protection of the society. Its maintenance is further necessary in order to strengthen the sense of justice of the society and its legal knowledge as well as its trust in the legal authorities. The separate nature of whole life imprisonment shall however be more intensively emphasised and distinguished from the provisions of the classical form of life imprisonment. For this reason, the rule that the obligatory review and clemency procedure has to be carried out after the person concerned has spent 40 years in prison cannot be upheld anymore.17 In order to achieve complete consistency with the principles laid down in the judgment of the ECtHR, the decision of the president granting clemency shall include reasons with regard to the circumstances of the case concerned, in which the president shall define which aspects of the principles of the clemency procedure were taken into consideration. (Polgár 2015: 33–34)

17  According to the author, it would be preferable that the person concerned should serve at least 50 years in prison.

182  Miklós Lévay The common argument in both publications is that the authors find it a positive phenomenon that the sanction of whole life imprisonment is included in the Fundamental Law of Hungary. According to their point of view, this solution clearly indicates that the legislature would like to maintain this punishment in the long term but simultaneously wishes to declare the constitutional limitations on it (Balla 2014: 52; Polgár 2015: 25).

VII. CONCLUSIONS

After having discussed the constitutional and criminal law-related provisions of life imprisonment without parole in Hungary, the rules of review and clemency procedure, and the judgment of the ECtHR in the Magyar v Hungary (2014) case, the following conclusions may be drawn. In contrast to ‘ordinary’ life imprisonment, life imprisonment without parole raises special problems. These issues are political, penal policy, human rights, constitutional and implementation oriented in nature. As for the political aspect: in those countries that have abolished capital punishment, whole life imprisonment has become a key issue for punitive populism. Politicians tend to refer to this sanction as a crucial demand of the majority of the public, without which the reduction of criminality seems unimaginable. This phenomenon is well illustrated by the announcement on 20 May 2014 by the parliamentary fraction of the Hungarian government party, immediately after the publication of the judgment delivered in Magyar v Hungary (2014) in Strasbourg. The title of the press release was: ‘We will not let life imprisonment be taken away from us!’ The first part of the statement read as follows: FIDESZ (the leading party of the coalition government) holds on to whole life imprisonment, because the best place to keep criminals is in jail. Perpetrators, who commit serious, violent crimes against other people, must spend their whole life in prison. Life imprisonment without parole became part of the Fundamental Law with the consent of the overwhelming majority of Hungarian citizens. In 2011, during the National Consultation, 94 per cent of people supported the whole life sentence. (FIDESZ 20 May 2014)

It should be added to this press release—as already mentioned before—that only a little more than 900,000 people returned the related questionnaire, but that 93 per cent of them supported life imprisonment without parole. One question that arises in the field of penal policy is whether life imprisonment without parole is actually an indispensable instrument of crime control. The related penological problem is about the rationality of this sanction. In this regard, it should be emphasised that the quality of life in those countries not imposing capital punishment and whole life sentences is not necessarily lower than in those countries that impose such sanctions.

Constitutionalising Life Imprisonment without Parole 183 And a further phenomenon from Hungary: although after the abolition of capital punishment in 1990, the number of registered murder cases increased until 1994, it decreased subsequently. Indeed, since 2005 the number of registered cases has been lower than before 1990. The extension of the applicability of whole life imprisonment after 1998 was indeed not justified by criminal statistics. Dávid Vig (2015: 41) has pointed out correctly: The extended application of whole life sentences was neither based on criminal statistical data, nor on the efficacy of whole life imprisonment, but rather on some murder cases highlighted by the media and its consequence in society in the form of a moral panic. The number of intentional murder cases between 1993 and 1998 did not change to a significant extent (it decreased from 298 to 289); furthermore, no considerable increase can be noticed of crimes against life and the bodily integrity of people (their number increased in the given time period from 12,192 to 12,413).

The constitutional legislation on whole life imprisonment was also not necessitated by the trends of the most serious crimes. For instance, the number of murders in 2006 was 306 (for both murder and attempted murders), while in 2010 it was 276 (again for both crimes) (Belügyminisztérium és Legfőbb Ügyészség [Chief Prosecutor Office and Ministry of Internal Affairs] 2006; 2010). Analysing the sanction of life imprisonment without parole from the perspective of human rights, the case law of the ECtHR clearly states that the sanction in itself does not qualify as inhuman punishment. However, the lack of a realistic prospect of release and the lack of a proper procedure reviewing whether the continued enforcement of the sentence is justified, may be regarded as contrary to Article 3 of the ECHR. The mere fact that the respective Hungarian provisions are to be found on different legislative levels does not prevent the examination of whether they are in line with the jurisprudence of the ECtHR. It should further be added that the constitutional provision on life without parole also narrows the competence of the Constitutional Court to review the conformity of life imprisonment with the Fundamental Law. As it became clear that life imprisonment without parole sentences will be included in the Fundamental Law, one of the weekly newspapers published in its online issue an article with the following title: ‘Deadly hit to the Constitutional Court’ (Dezső 2011). At first sight, the author reasonably assumed that once the Fundamental Law came into effect, the Constitutional Court would not be able to review the conformity of life imprisonment without parole sentences with the Fundamental Law. However, the Constitutional Court still had some elbow room in this regard. As the ECtHR does not examine the inherent conformity of life imprisonment without parole with the ECHR, but rather focuses on its imposition, its review mechanisms and

184  Miklós Lévay on the circumstances of its execution, the Constitutional Court cannot be prevented by the Hungarian constitutional provision from examining the very same questions. It should be noted that the examination itself cannot be excluded, since the Fundamental Law guarantees the right to human dignity. And in the first instance whole life imprisonment violates human dignity. This notion was summarised by Renáta Uitz (2014: 49): [S]ociety does not intend to isolate the perpetrators of the most serious crimes from the community for eternity, because it assumes that such perpetrators are also able to face the consequences of their offences and change in such a way that they do not want to commit further crimes in the future. This assumption does not regard human beings as an instrument of criminal policy, but considers the deeper meaning of humanity. This core element of humanity is in the traditional concept of political philosophy and the human rights thinking of the European enlightenment identified with the concept of human dignity.

Should the current direction of case law of the ECtHR change in such a way that it would declare life imprisonment without parole in itself contrary to the ECHR, the fulfilment of the obligation under Article Q(2) of the Fundamental Law will come into question, namely that Hungarian law should conform with international law. Therefore, contradictions with certain provisions of the Fundamental Law may certainly arise in the future. However, one could accept the current statement in the Hungarian literature, which challenges the justification for the existing provisions of the Fundamental Law, for ‘excluding ex post review of the conformity of life imprisonment without parole to the Fundamental Law’ (Tóth 2012a: 409). The judgment of the ECtHR in the Magyar v Hungary (2014) case allows this critique, and further constitutional challenges will most probably concern the review and clemency procedure as well. According to the Headquarters of the Prison Administration of Hungary, on 1 October 2015, 276 persons were serving life imprisonment, 49 (48 men and one woman) of them whole life sentences, in a penitentiary located in Southern Hungary, in a special section established for them (personal communication of 1 October 2015). As can be seen in Table 7.2, nearly half of these prisoners were sentenced to whole life imprisonment during the past four years. In 2012, one former commander of this prison and another high officer stated in connection with these ‘lifers’: As a consequence of the closed and isolated accommodation, lifers lose all their motivations for a meaningful life, their instincts intensify and their social competences fade. The department is incapable of providing an appropriate amount of resources or their psychical and mental development. The Hungarian penitentiary system will therefore in a short time face a serious dilemma: How can we enforce these sentences?: … Our pool of pedagogical measures will slowly be depleted.

Constitutionalising Life Imprisonment without Parole 185 Table 7.2:  Sentencing Practice in relation to Life Imprisonment in Hungary, 2011–2014 Year

No of Life Prisoners

Of which ‘whole lifers’

2011

11

1

2012

30

7

2013

33

10

2014

28

7

Source: Letter from the President of the National Office for the Judiciary, 23 March 2015, as personal communication with the author (on file with the author).

From day to day it becomes even harder to set up pedagogical plans through time structuring and by setting short and long term goals for prisoners who are not ­eligible for parole, or even for those who are not within a foreseeable time. (Kiszely and Nagy 2012: 12)

This statement demonstrates that not only the sanction of life imprisonment without parole and its review procedure, but also the implementation of all life sentences, raises urgent human rights related questions in Hungary. REFERENCES

Balla, L (2014) ‘Az életfogytig tartó szabadságvesztés büntetéskiszabási ­gyakorlata’ Magyar Rendészet, 6, 43–68. Belügyminisztérium és Legfőbb Ügyészség [Chief Prosecutor Office and Ministry of Internal Affairs] (2006) Tájékoztató a bűnözésről [Information on the crime situation] (Budapest, Belügyminisztérium és Legfőbb Ügyészség). —— (2010) Tájékoztató a bűnözésről [Information on the crime situation] (Budapest, Belügyminisztérium és Legfőbb Ügyészség). Dezső, A (2011) Gyilkos pofon az Alkotmánybíróságnak. Available at http:// hvg.hu/itthon/20110401_tenyleges_eletfogytiglan_alkotmany (accessed 14 March 2015). Eötvös Károly Institute (2011) Jogállamtalanítás-III. Nemzeti konzultációkérdések az új alkotmányról. Available at http://www.ekint.org/ekint/ ekint.news.page?nodeid=445 (accessed 14 March 2015). European Union Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedure between Member States (Official Journal L 246 of 29.9.2003, p 1). FIDESZ (2010) ‘Programme of the new Government submitted by Mr ­Viktor Orbán, Prime Ministerial candidate, to the Speaker of Parliament on 22 May’. Available at www.parlament.hu/irom39/00047/00047.pdf (accessed 14 March 2015).

186  Miklós Lévay —— (2014) ‘We will not let life imprisonment be taken away from us!’ Budapest National Press Service, 20 May. Available at www.fidesz.hu/ hirek/2011-02-14 (accessed 14 March 2015). Gönczi, G (2015) ‘A ténylegesen életfogytiglanra ítéltek kötelező kegyelmi eljárása a brit határozatokat elbíráló strasbourgi joggyakorlat fényében’ Magyar Jog, 9, 498–505. Helsinki Committee for Human Rights of Hungary (2011) ‘HHC Warns of Populist Rhetoric in Proposed New Constitution—Possibility of Life Sentence Without Parole’. Available at http://helsinki.hu/tenyleges-­ eletfogytig-tarto-szabadsagvesztes-%E2%80%9Etesz%E2%80%9D-azalkotmanyozasi-konzultacioban-%E2%80%93-a-helsinki-bizottsag-apopulista-megkozelites-veszelyere-figyelmeztet (accessed 14 March 2015). Jakab, A (2011) Az új Alaptörvény keletkezése és gyakorlati következményei (Budapest, HVG-ORAC). Karsai, D (2014) ‘Az Emberi Jogok Európai Bíróságának határozata a tényleges életfogytiglani szabadságvesztésről. Szabadságvesztés és az embertelen bánásmód tilalma’ JeMa-Jogesetek Magyarázata, 1, 70–77. Kiszely, P and Nagy, I (2012) ‘Az idő rabságában. A hosszú időre ítéltek büntetésvégrehajtási helyzete a Szegedi Fegyház és Börtönben’ Börtönügyi Szemle, 3, 1–16. Lévay, M (2012) ‘Az Emberi Jogok Európai Bírósága a tényleges életfogytiglani szabadságvesztésről. Az embertelen, megalázó bánásmód vagy büntetés tilalma a büntetés kiszabásakor és a büntetés fenntartásakor’ JeMa-Jogesetek Magyarázata, 3, 74–78. Nagy, F (2001) A magyar büntetőjog általános része (Budapest, Korona Kiadó). —— (2005) ‘Az életfogytig tartó szabadságvesztés-büntetésről’ in F Nagy (ed), Tanulmányok a Btk. Általános Részének kodifikációjához’ ­(Budapest, HVG-ORAC) 175–216. —— (2013) ‘Gondolatok az életfogytig tartó szabadságvesztésről’ Magyar Jog, 5, 265–71. National Consultative Council [Nemzeti Konzultációs Testület] (2011a) Nemzeti Konzultáció: kérdések az új Alkotmányról. Available at www. fidesz.hu/hirek/2011-02-14 (accessed 14 March 2015). —— (2011b) Kérdések az Alaptörvényről, 2011. április 3. Available at http://static.fidesz.hu/download/156/A_Nemzeti_Konzultacios_Testulet_ kerdoiveinek_eredmenyei_2156.pdf (accessed 14 March 2015). Pallagi, A (2014) ‘A tényleges életfogytig tartó szabadságvesztés a büntetőpolitika szemszögéből’ Belügyi Szemle, 12, 75–98. Polgár, A (2015) ‘Volt egyszer egy büntetés ? A kötelező kegyelmi eljárás szabályai a strasbourgi döntés alapján’ Börtönügyi Szemle, 2, 23–34. Tóth, M (2012a) ‘A büntetőjogi jogkövetkezmények’ in E Belovics, B Gellér, F Nagy and M Tóth (eds), Büntetőjog I. A 2012. évi C. törvény alapjánÁltalános Rész (Budapest, HVG-ORAC) 369–464.

Constitutionalising Life Imprisonment without Parole 187 —— (2012b) ‘Életfogytig tartó szabadságvesztés és a remény joga újabb emberi jogi döntésekben’ Jogtudományi Közlöny, 6, 268–72. —— (2015) ‘Életfogytig, mindhaláig. Szibéria—Európa közepén’ Élet és Irodalom, 31, 5. Uitz, R (2014) ‘Tévhitek és hazugságok. A strasbourgi bíóság tényleges ­életfogytig tartó szabadságvesztésről szóló ítéletéről’ Magyar Narancs, May 29, 48–49. Van Zyl Smit, D, Weatherby, P and Creighton, S (2014) ‘Whole Life ­Sentences and the Tide of European Human Rights Jurisprudence: What Is To Be Done?’ Human Rights Law Review, 14, 59–84. Vig, D (2015) ‘A remény gyilkosai és a gyilkos reményei. Az Alkotmánybíróság a tényleges életfogytig tartó szabadságvesztésről’ Magyar Narancs, January 29, 41–43. TABLE OF CASES

Domestic Cases Constitutional Court Order of 3013/2015 (I.27.) Curia Bfv. II. 1812/2014/18. sz. (referred to in the Uniformity Decision 3/2015) Decision of the Constitutional Court of 23/1990 (X.31.) Uniformity Decision 3/2015 of the Curia of Hungary. Magyar Közlöny (Hungarian Official Gazette) 2015/105 European Court of Human Rights Kafkaris v Cyprus App no 21906/04 (12 February 2008) Magyar v Hungary App no 73593/10 (20 May 2014) Vinter and others v United Kingdom App nos 66069/09, 130/10 and 3896/10 (9 July 2013)

188

8 A Right to Hope? Life Imprisonment in France MARION VANNIER

I. INTRODUCTION

T

HE IDEA OF granting life prisoners a ‘right to hope’ is rather recent, and the concept in itself still lacks a clear definition. In France, reference to ‘hope’ was made in 2006 by a group of life prisoners held in Clairvaux prison, one of the high-security facilities in the country. In their letter entitled ‘We, the Walled-Up Alive’ (Nous les Emmurés Vivants), they called for the reintroduction of the death penalty (Association pour la communication sur les prisons et l’incarcération en Europe 2006). In a country that had successfully abolished capital punishment over 30 years earlier, this call may have seemed counterintuitive; why would inmates prefer to die rather than serve a life sentence? The answer is straightforward: because they had no real hope of release; their sentences entailed a lingering and painful death behind walls. Capital punishment, by contrast, would present a swift form of death. Both capital and life sentences achieved the same result, that is, death, but at a different pace. Since then, as mapped out in section II, the question of hope in the context of life sentences has entered the realm of European human rights case law. This chapter then delves into the historical roots of hope as developed in the context of extreme forms of punishment in France. This historical investigation reveals how some of the current features and rationale for preserving prisoners’ ‘right to hope’ echo some of the arguments raised against the death penalty. Section III focuses on the three parliamentary debates (1791, 1908, 1981), during which the concept of hope was raised both to criticise capital sentences—on the ground that such punishment permanently withdrew any hope of release—and to evaluate the legitimacy of life imprisonment as a substitute for death sentences. Sections IV and V draw on the two aspects of reducibility identified by the European Court of Human Rights (ECtHR) to explore the extent to which French life imprisonment guarantees prisoners, de jure and de facto, a right to hope. While French

190  Marion Vannier life imprisonment may be reducible, in theory and as a matter of law, the de facto reducibility of life sentences is much less evident. The main argument of this chapter is that the ECtHR has narrowly construed the right to hope, which, as a result, is at risk of distracting attention from the more fundamental questions about the legitimacy of lifelong incarceration, in France and elsewhere.

II.  THE RIGHT TO HOPE UNDER EUROPEAN HUMAN RIGHTS CASE LAW—AN OVERVIEW

Prisoners sentenced to life imprisonment, it is said, as a matter of human rights should retain a right to hope. A life sentence would breach Article 3 of the European Convention on Human Rights (ECHR), unless prisoners are afforded a realistic prospect of release. Until recently, the jurisprudence appraising life sentences had focused on the conditions of imprisonment to which lifers were subjected rather than on the duration and nature of such sentences (Lecuyer 2011). Considerations about offering prisoners a right to hope first arose in Kafkaris v Cyprus (2008).1 The ECtHR decided that a life sentence was not per se incompatible with the ECHR if it was carried out in full, that is, if a prisoner died while serving the sentence (Kafkaris v Cyprus 2008: para 98). However, the Court also found that in order for such a form of punishment to be valid under human rights law, it would have to be reducible, de facto and de jure; as a matter of fact and a matter of law. This finding does not mean that a life sentence must be reduced but rather that it must be capable of being reduced. In Vinter and others v United Kingdom (2013), the Grand Chamber clarified the parameters of the prohibition on inhuman and degrading punishment when applied to whole life orders in England and Wales. The Chamber reiterated the Kafkaris finding that life sentences are not ab initio incompatible with the ECHR. Indeed, such a punishment may be justified in order to keep prisoners locked up if they continue to pose a danger to society (2013: para 108). The decision in Vinter is significant for two reasons. First, it confirms the principle of reducibility. In line with Kafkaris, a life sentence must be capable of being reduced de facto and de jure. A contrario, if it were impossible to reduce the punishment either as a matter of fact or of law, it would raise concerns under Article 3. This is different from requiring

1 In Léger v France (2006) the ECtHR found that life sentences were not incompatible per se with European human rights even though the inmate had spent over 40 years in prison. However, it had also previously indicated, without deciding finally, that incarceration which provides no prospect of release could breach Art 3 (Einhorn v France 2001).

A Right to Hope? Life Imprisonment in France  191 evidence that a punishment is both irreducible de facto and de jure for there to be a breach of Article 3 (Mavronicola 2014: 303). Secondly, and focusing on the legal (de jure) aspect of the reducibility requirement, the Vinter case developed a procedural duty of review. More specifically, it held that the national law must afford the possibility of review with an actual prospect of commutation, remission, termination or ­conditional release (Vinter and others v United Kingdom 2013: paras 106, 108–09). It must not merely and abstractly provide prisoners a prospect of release; the prospect must be ‘realistic’. The release mechanism available in England and Wales required the following elements to be cumulatively established: the prisoner must be terminally ill; death is likely to occur shortly (that is, within three months); appropriate care could be provided outside prison; there is minimal risk of reoffending; and further incarceration would reduce the prisoner’s life expectancy (section 30(1) of the Crime (Sentences) Act 1997 read together with the relevant Prison Service Orders). The Grand Chamber decided that this particular kind of release did not ensure a realistic ‘prospect of release’ as provided by Article 3 (2013: para 127). In addition, the review procedure must be clear from the outset, that is, from the moment the sentence is handed down. A prisoner should not have to wait for an indeterminate period of time to ask for review, since that would be a violation of legal certainty. The Court found that it would be ‘capricious’ to expect prisoners subject to a whole life order to work towards rehabilitation without knowing whether and when they would be entitled to be considered for release (2013: para 122). In Vinter, the Grand Chamber sanctioned whole life orders precisely because the procedural review mechanism available in England and Wales was not clear from the outset and as such did not provide a meaningful prospect of release.2 According to Vinter, the review should be available after a set period of time. The Court observed that ‘the comparative and international law materials … show clear support for the institution of a dedicated mechanism guaranteeing a review no later than 25 years after the imposition of a life sentence, with further periodic reviews thereafter’ (2013: para 120).3

2  ‘A whole life prisoner is entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought. Consequently, where domestic law does not provide any mechanism or possibility for review of a whole life sentence, the incompatibility with Article 3 on this ground already arises at the moment of the imposition of the whole life sentence and not at a later stage of incarceration.’ (Vinter and others v United Kingdom 2013: para 122). 3  In the recent decision of the ECtHR, Hutchinson v United Kingdom (2015), the Court found that the judicial interpretation of the applicable law provided by the Court of Appeal decision in R v McLoughlin (2014) made the release mechanism sufficiently clear and, as a result, whole life orders no longer breached Art 3 of the ECHR.

192  Marion Vannier The penal rationale for providing prisoners hope is founded on the concept of rehabilitation (2013: para 111).4 For the Grand Chamber, denying prisoners any prospect of release would breach the ECHR, as it would negate any possibility of change; for ‘whatever the prisoners do in prison, however exceptional their progress towards rehabilitation, their punishment remains fixed and un (2013: paras 113, 117). To establish the primacy of rehabilitation, the Court relied on the notion of human dignity. The Grand Chamber referred to the German Constitutional Court decision in the Life Imprisonment Case (1977), which found that it would be incompatible with human dignity for a prisoner to be permanently deprived of freedom and never be afforded a chance to reintegrate society (2013: para 112). By developing the constitutional right to dignity, the German Court established the principle of resocialisation as the guiding penal rationale of the German criminal justice system. Following a similar line of reasoning, the Court in Vinter relied on human dignity—described as the ‘very essence’ of the ECHR (2013: para 113)—to place rehabilitation as the guiding penal rationale. The decision specifies ‘the emphasis in European penal policy is now on the rehabilitative aim of imprisonment’ (2013: paras 114–18). Explicit mention of a ‘right to hope’ was made by Judge Power-Forde in her concurring opinion in Vinter. Through the lens of hope, she reiterated each of the conditions under which a life sentence would violate Article 3. First, she unambiguously tied hope to the prohibition against inhuman and degrading treatment provided under Article 3. She wrote, ‘Article 3 encompasses what might be described as “the right to hope”. It goes no further than that’. Secondly, she confirmed that hope was the corollary of human dignity in that it was ‘an important and constitutive aspect of the human person’. Even the cruellest prisoners retain ‘their fundamental humanity’, and what makes them ‘human’ is their ‘capacity to change’. They should thus be entitled to ‘retain the hope that someday they may have atoned for the wrongs which they have committed’. To deprive them ‘entirely’ of the hope of being released would be ‘degrading’, and thereby violate Article 3, according to Judge Power-Forde (Vinter and others v United Kingdom 2013: Concurring Opinion of Judge Power-Forde). While it may be too early to speak of a fully-fledged European right to hope (see also Simonsen 2015), a brief historical investigation into France’s legislative past reveals that there are traces of the ECtHR’s requirement of reducibility in earlier debates pertaining to the French death penalty.

4  For detailed critique of the justifications of punishment, see von Hirsch (1999), Ashworth (2010).

A Right to Hope? Life Imprisonment in France  193 III.  ABOLISHING THE DEATH PENALTY AND THE ORIGINS OF HOPE IN FRANCE

In France the idea of providing prisoners with hope in the form of a prospect of release was originally tied to concerns pertaining to the death penalty. The concept was used both to criticise capital sentences and to evaluate substitute sentences, which included lifelong incarceration. In other words, there are traces of the contemporary humanitarian understanding of the right to hope—both in terms of its components (reducibility and review) and underlying rationale (human dignity and rehabilitation)—in historical parliamentary debates pertaining to the death penalty. The historical exploration reveals how concerns about capital punishment, notably in terms of hope of release, share some similarities with those currently generated by life sentences. This section focuses on the three historical attempts to abolish capital punishment; the primary resource of data stems from the Débats Parlementaires of 1791, 1908 and 1981. A.  Replacing Death Sentences with a Fixed Prison Term In the wake of the 1789 revolution that brought an end to the absolute monarchy and introduced a Republic and a democratic system, some French policy-makers made it a priority to erase any stains of the Ancien Régime.5 In particular, they sought to repeal capital punishment, as it symbolised the cruelty and autocracy of the former political regime. The first French Penal Code of 1791 sought to address these concerns. The rapporteur on the Draft Penal Code, Le Peletier de Saint-Fargeau, pleaded for the abolition of the death penalty. In line with Cesare Beccaria’s (1764) utilitarian reasoning, Le Peletier argued that death sentences should be abolished as they were ‘inefficient’6 (Débats Parlementaires 1791/ 2006: 6). In his 1791 Report, Saint-Fargeau thus proposed substituting death sentences with lengthy prison terms (Débats Parlementaires 1791/ 2006: 10).7 At the same time, punishment had to remain ‘humane’ (Débats Parlementaires 1791/ 2006: 9).8 For this reason, incarceration as a source of punishment should not entail locking up criminals for the remainder of their lives

5 A monarchic and aristocratic system established in France from approximately the ­fifteenth century until the eighteenth century (Doyle 2012). 6  The French original phrase reads: ‘l’inefficacité et l’inutilité de cette peine sont prouvées’. 7  ‘Nous avons pensé que, pour l’efficacité de l’exemple, la durée de cette peine devait être longue’. 8  ‘Mais n’oublions pas que toute peine doit être humaine’.

194  Marion Vannier (Débats Parlementaires 1791/2006: 10).9 Imprisonment would only be acceptable insofar as it was ‘temporary’ (Débats Parlementaires 1791/ 2006: 9).10 Imprisoning an offender ‘forever’ would trigger hopelessness, endangering prisoners’ mental health (Débats Parlementaires 1791/ 2006: 9).11 For this reason, Saint-Fargeau suggested instead that offenders be imprisoned in a ‘dark dungeon’ for a minimum of 12 years and a maximum of 24 years, during which they would be isolated, shackled and given ‘bread and water’.12 Moreover, providing some abstract hope of release would be insufficient; to meet the humanity threshold, prospects of discharge would have to be ‘apparent’ to prisoners (Débats Parlementaires 1791/ 2006: 10).13 Le Peletier thus suggested breaking down the sentence into different stages in order to help prisoners cope with it and remain hopeful. During each step, ‘progressive mitigation’ (adoucissements successifs) would be introduced, such as work or reducing the length of time spent in solitary confinement (Débats Parlementaires 1791/ 2006: 10). It is worth mentioning that prior to the eighteenth century, lengthy incarceration was not a common form of punishment (Petit 1990; Spierenburg 1995). Prisons were generally used to hold criminals, such as vagabonds, for short periods of time. Normally they would only be detained for the time needed to decide their actual punishment (Petit 1990; Carlier 2009). Alongside ordinary prisons, France also had a number of Maisons de Force, such as the Bastille. Exceptionally, the monarch could decide to incarcerate certain criminals––political opponents, mainly—in such facilities for as long as he saw fit. These prisons, and the unpredictable period for which offenders could be held, would become symbols of monarchic arbitrariness (Carlier 2009). Offenders of other forms of serious crimes would generally be sentenced to forced labour (travaux forcés). While the 1791 Penal Code failed to repeal capital punishment,14 it generalised imprisonment for a wide array of crimes; prison was to become the ‘ordinary’ form of punishment (Petit 1990; Carlier 2009). Life imprisonment was later codified in the 1810 Napoleonic Penal Code (Petit 2002: 90). Subsequently, lifelong banishment to the colonies, another form of the same punishment, was introduced. In 1854, a law was passed under which crimi9 

‘Mais que, pour qu’elle ne fût pas barbare, il fallait qu’elle eût un terme’. ‘Le premier et le principal adoucissement de cette peine, c’est de la rendre temporaire. Le plus cruel état est supportable lorsqu’on aperçoit le terme de sa durée’. 11  ‘Le mot à jamais est accablant; il est inséparable du sentiment du désespoir’ (emphasis in original). 12  Also, citizens would be invited to visit the cells once a month as a deterrent to potential criminals (Débats Parlementaires 1791/ 2006: 9). 13  The original reads: ‘Il ne suffit pas encore de faire luire de loin dans ce cachot obscur le rayon de l’espérance; nous avons jugé qu’il était humain d’en rendre l’effet plus apparent et plus sensible par une progression d’adoucissements successifs.’ 14  The number of crimes for which death sentences were handed down was significantly reduced (Forni Report 1981). 10 

A Right to Hope? Life Imprisonment in France  195 nals would be sent to serve sentences of forced labour in what was called the ‘Green Hell’, that is, the French colonies.15 Michel Pierre (2006) even describes Guyana as the ‘Green Guillotine’, as offenders deemed irredeemable would be sent there and most likely die there too (Badinter 2014).16 B.  Replacing Death Sentences with Perpetual Incarceration Throughout the nineteenth century, a number of philosophers, politicians and writers spoke vehemently against the death penalty. Intellectuals such as Hugo and Lamartine (1848) did not refer explicitly to the concept of hope, nor did they mention life imprisonment as a desirable alternative. They did, however, associate the barbarity of a capital sentence with the fact that it was ‘irreducible’. Hugo and Lamartine also argued that the barbaric nature of death sentences stained the wider society. These two arguments were pivotal to the second attempt to repeal capital punishment. The legislative effort to repeal the death penalty occurred with the advent of the Third Republic and the rise to power of the Left Radicals in 1906; a government led by Georges Clémenceau. Similarly to Hugo and Lamartine, Clemenceau deplored the barbaric nature of the death penalty and the gruesome spectacle of blood, which he described as a blot on civilised society. When a human life is ‘methodically destroyed by the social machine’ Clemenceau claimed, ‘society itself is in peril’ (1896: 310). Instead, and to achieve ‘progress’, a society needed to provide humane forms of punishment (Clémenceau 1896: 312). Clemenceau’s 1908 bill to repeal capital sentences was debated extensively in the National Assembly. Particular emphasis was given to the link between rehabilitation and human dignity (Débats Parlementaires 1908/ 2006). Jean Jaurès for instance, deplored the ‘dogma of fatality’ created by capital punishment (Débats Parlementaires 1908/ 2006: 235). By ‘fatality’, Jaurès explained, he meant that the guillotine prevented prisoners from making any changes or progress. Instead, death sentences promoted ‘despair’, both ‘systematically’ and ‘eternally’ (Débats Parlementaires 1908/ 2006: 240). In this way, the death penalty denied ‘humane hope’. Similarly, the clergyman Abbé Lemire—one of the rare members of the Catholic Church to fervently critique capital punishment—argued that death sentences violated the ‘dignity of the human person’ (Débats Parlementaires 1908/ 2006: 260). The criminal justice system should instead promote the rehabilitation of the prisoner, and society should provide an indefinite period for reform and remorse, Lemire argued (Débats Parlementaires 1908/ 2006: 260, 263). 15 

The 1854 law would later be expanded in 1885 to recidivists. penal colony (Bogne) was abolished in 1938, but was only in 1953 that the last criminals were returned to the mainland. 16 The

196  Marion Vannier For the clergyman, abolishing the death penalty would also be ‘worthier of France’ (Débats Parlementaires 1908/ 2006: 264). Legislators opposing the death penalty suggested replacing death sentences by life imprisonment or ‘perpetual imprisonment including cellular confinement for six years’ (Débats Parlementaires 1908/ 2006: 10, 13, 27, 39, 310). Some parliamentarians were more hesitant about perpetual incarceration. Assemblyman Failliot for instance described ‘perpetual cellular confinement’ as a barbaric form of punishment, for it provoked the ‘slow physical and mental destruction’ of individuals. For Failliot, a strategy that purported to replace death sentences by an equally inhuman punishment was self-contradictory (Débats Parlementaires 1908/ 2006: 9).17 Parliamentarians, including a significant number of Left Radicals, decided not to repeal the death penalty. The decision to keep capital punishment was tainted by a sensational crime. On 27 January 1907, Albert Soleilland raped and killed 11-year-old Marthe Erbelding.18 The newspaper Le Petit Parisien used this particularly gruesome event to draw attention to the rise in crime and to criticise the newly appointed government for failing to address criminality. To influence the on-going parliamentary debates, the newspaper appealed directly to public opinion. In September 1907 it organised an unprecedented referendum, which asked ‘Are you in favour of the death penalty?’ The newspaper received 1.4 million responses, of which 1.1 million were in favour of the death penalty.19 In addition to hindering the repeal of the death penalty, the public reaction to the Soleilland case also drew attention away from the emerging concerns about life sentences; anxieties pertaining to the death penalty eclipsed the humanitarian hesitations about the substitute punishment. C.  Abolishing the Death Penalty and Introducing Whole Life Prison Terms In the wake of the horrors committed during World War II, intellectuals such as Albert Camus (1957) and Arthur Koestler (1956) fervently denounced death sentences. However, legislative debates on the issue would

17  The original reads: ‘L’encellulement perpétuel, c’est-à-dire une peine plus barbare, une peine qui est la destruction lente de l’intelligence et du moral de l’individu dans un corps qui ne veut pas mourir. Et c’est cette souffrance, c’est ce supplice que les abolitionnistes réclament au nom de l’humanité’. 18  See references to case in Débats Parlementaires (1908/ 2006). 19 Other events possibly fuelled the French society’s anxieties about criminality. In the North of France, a series of organised robberies ‘terrorised’ the province, according to Le Petit ­Parisien, raising serious concerns among local officials as to whether they would be capable of protecting their communities without the threat of the death sentence (Le Quang Sang 2002). In this context, the death penalty was often depicted as a necessary tool to maintain political stability (Le Quang Sang 2002).

A Right to Hope? Life Imprisonment in France  197 only resume three decades later. In the meantime, a 1978 law introduced the concept of a ‘prison tariff’ to be attached to life sentences. During this period of time, prisoners would be ineligible for parole, semi-liberty or temporary discharge. The period was originally capped at 15 years for life sentences, a tariff which could be increased to 18 years. The legislators who introduced the law relied on a 1977 report by the Comité d’Etudes sur la Violence, la Criminalité et la Délinquance, which had found that temporary discharges or early release raised risks of recidivism, thereby endangering society (Débats Parlementaires 1978: 5466, 5469, 5479). Irreducible prison tariffs were to address such issues; the law also marked the first step towards transforming lengthy incarceration into perpetual life sentences. Shortly after his election in 1981, socialist president François Mitterrand asked his Minister of Justice, Robert Badinter, to draft a bill that would put an end to capital punishment. At the time, 62 per cent of public opinion supported capital punishment (Débats Parlementaires 1981/ 2006: 132). Despite the lingering public anxiety, abolitionists reiterated the same arguments raised in 1791 and 1908, and pointed to the fact that France was one of the last countries in Europe, alongside Turkey, to retain capital punishment. In comparison to the earlier attempts to repeal the death penalty, the question of determining an efficient and adequate substitute was purposefully and strategically excluded. In light of the previous disagreements, Badinter made it clear that the issue was one to be discussed at a later, and separate, stage (Débats Parlementaires 1981/ 2006: 30–32). The death penalty had to be abolished on its own terms (Badinter 2000).20 Moreover, Badinter argued that there was no suitable alternative or substitute for capital punishment. He famously said: ‘one does not replace torture by another form of torture’ (Débats Parlementaires 1981/ 2006: 30).21 The intention was to avoid introducing an equivalent form of capital punishment that would merely bear another name. This rationale echoes law Professor Savey-Casard’s warning of 1977. In his report for the General Society on Prisons he had cautioned abolitionists against offering a substitute punishment to capital sentences. ‘Abolitionism’, he wrote, ‘is losing its way when it seeks to provide a punishment as harsh as the death penalty. It is unfaithful to its founding principle, humanitarianism’ (cited in Débats Parlementaires 1981/ 2006: 268). Article 2 of the Bill abolishing the death penalty simply provided that offenders who previously would have been executed would instead be given a life sentence. In other words, the law did not create a new sentence specifically for those crimes which had formerly been eligible for the death sentence; it merely referred to an existing sentence.

20  In the original, ‘L’abolition pure, simple et définitive’, with reference to Victor Hugo who first used the expression. 21  ‘l’on ne remplace pas un supplice par un autre.’

198  Marion Vannier Some assemblymen disagreed with this strategic approach. For instance, Philippe Seguin—one of the most vocal right-wing opponents of the death penalty—disagreed with the idea of discussing alternative sentences to capital punishment at a later stage. He worried that the failure to address the issue of lifelong incarceration simultaneously would eventually lead to a backlash against abolitionist endeavours. Seguin argued that the difficulty of abolishing capital sentences was that it required ‘resolving a contradiction and providing an innovation’ (Débats Parlementaires 1981/ 2006: 45). By contradiction he meant the conundrum of offering a substitute punishment equivalent to the death penalty, that is, by incarcerating offenders for the remainder of their lives. Because of concerns for humanity, and in order to preserve the security of prisons, prisoners should always retain the possibility of being reintegrated into society (Débats Parlementaires 1981/ 2006: 45). This possibility should not be, pre-emptively and systematically, withdrawn. The innovation, Seguin submitted, would avoid having to face such a contradiction. It would entail creating a new system where a jury would determine the re-adaptability of the condemned, and systematically ensure the review of life sentences (Débats Parlementaires 1981/ 2006: 45). Another parliamentarian, Pierre Bas, similarly worried about not addressing the issue of life imprisonment concomitantly to that of capital punishment. A prison sentence that is perpetual amounts to imprisonment until death, he claimed. Such a punishment means sentencing prisoners to ‘die a slow death’22 (Débats Parlementaires 1981/ 2006: 270). In a modern penal system, Bas suggested, punishments should not only seek to protect society and to deter potential offenders. The penal system should also aim to provide those who commit crimes with the possibility of ‘re-education and reintegration’ (Débats Parlementaires 1981/ 2006: 270). And both concepts were incompatible with detention ‘with no hope of freedom’ (Débats Parlementaires 1981/ 2006: 270). Further, and similarly to Seguin, Bas believed that whole life sentences would be extremely dangerous for prison staff, as it would turn individuals deprived of ‘any form of hope’ into ‘wild animals’ (Débats Parlementaires 1981/ 2006: 270). It was therefore essential, according to Bas, to treat lifelong imprisonment and the death penalty as one single issue rather than two separate matters. On 18 September 1981, the legislators approved Badinter’s legislation and successfully abolished the death penalty. Only a few years later in 1994, in the wake of a highly sensationalised case involving rape and murder by a recidivist criminal, ‘whole life’ prison tariffs were introduced by statute. When attached to life sentences whole life tariffs created what Yves Lecuyer (2012) has called perpetual incarceration,23 referred to in this chapter as

22  23 

‘Mourir à petit feu’. ‘perpétuité perpétuelle’.

A Right to Hope? Life Imprisonment in France  199 ‘whole life sentences’. Commentators of the 1994 legislation raised two concerns: conceivably the law denied prisoners any hope of being reintegrated into society, which arguably amounted to introducing a new form of delayed death penalty. Grumbach, for instance, wrote in 1993 that perpetual incarceration denied prisoners any hope of release: ‘The principle … of a sentence which is effectively perpetual, in that it abandons any hope for social reinsertion, is not a response’ (cited by Lecuyer 2012: 570, footnote omitted). For Braunschweig, perpetual imprisonment was ‘evidence of a society’s failure which, short of reintroducing the death penalty, is forced to re-establish an administrative death though life imprisonment’ (cited by Lecuyer 2012: 570, footnote omitted). This historical, albeit brief, investigation reveals how the right to hope, as currently construed by the ECtHR in relation to life sentences, bears some resemblance to the critiques historically raised against the death penalty. Concerns about reducibility and review had already been raised in France to criticise the death penalty and to assess substitute prison sentences. Perhaps the substitute for capital punishment as imagined and justified by Le Peletier in 1791 shares the most similarities with features of the current right to hope, as outlined in the Vinter judgment by the ECtHR. The reformer favoured fixed-term substitute prison sentences in order to ensure that the punishment period remained limited and humane. While the ECtHR does not reject the idea of lifelong sentences, Le Peletier’s justification for fixed prison terms (that is, because they qualify as a humane form of punishment) is similar to the rationale for requiring that life sentences be reducible. Le Peletier further suggested breaking down prison sentences into different stages during which the punishment would be modified and adapted to the needs of each specific case. These suggestions echo Vinter’s requirement that review mechanisms be available to whole life prisoners. Finally, Le Peletier’s insistence that the fixed-term character of imprisonment and the possibility of adjustments be made known to those serving the sentence resonates with Vinter’s requirement that the review mechanism for life sentences be available when the punishment is handed down. By contrast, abolitionists in 1908 suggested replacing capital sentences by perpetual rather than fixed-term incarceration. They also offered to include six years of cellular confinement with no possible adjustments. And in 1981, the nature of life imprisonment was simply not addressed, as Badinter decided to keep separate the two issues of repealing the death penalty and amending the law governing life sentences. This historical investigation further highlights the fact that the rationales on which earlier policy-makers opposed death sentences were similar to those upon which the contemporary right to hope as applied to life sentences is grounded. Punishments that denied the capacity of human beings to reform and change were considered to violate their human dignity.

200  Marion Vannier Some earlier criticisms of life and death sentences alike have not been reiterated in the ECtHR’s current understanding of the right to hope: in particular, the concerns of earlier reformers that the denial of hope of release would endanger prison staff and the peaceful management of carceral facilities and the concern of later reformers that such denial would turn prisoners into uncontrollable and unruly individuals. Nonetheless, at the national level, qualms about the impact of denial of hope on prison security and management continued to be raised. In 2012, the French Senate was asked to clarify what ‘life imprisonment’ meant and entailed. The response specified that a sentence that excludes any possibility of change contradicts France’s ‘Republican values’, and would also create an increased risk for the prison staff or anyone working on a daily basis with lifers as there would be no way ‘objectively’ of sanctioning their act (Ministère de la Justice 2012). The right to hope as currently framed in France may echo some of the historical concerns raised during the abolition of the death penalty but to what extent does French law provide a ‘realistic’ prospect of release as a matter of law? IV.  PROVIDING HOPE AS A MATTER OF LAW

A.  Mechanisms for Review: Parole and Prison Terms In France, a number of crimes are eligible for life sentences, including aggravated murder, kidnapping with torture, violent robberies involving death, and organised drug trafficking.24 Recidivists who have previously been sentenced to 20 or 30 years of imprisonment can also be given life sentences (Article 132-8 of the Penal Code). Juveniles cannot be sentenced to more than 20 years’ imprisonment. Exceptionally, however, young offenders aged 16–18 can be sentenced to life imprisonment (Article 20-2 of the Ordonnance of 2 February 1945). There are two cases where juveniles have been sentenced to life imprisonment. One of the offenders was subsequently released because his conviction was found to be wrongful (Libération 2003; Gartner 2001). The other case involved a 17-year-old offender, Mathieu Moulin, who, in June 2013, was convicted for the rape and murder of a 13-year-old child.

24  Example: Articles: 211-1 (genocide); 221-2 to 221.4 (murders); 222-26 (rape with torture and/or acts of barbarity); 222-2 (torture and/or acts of barbarity when preceded, committed along with, or followed by a crime other than murder or rape); 222-34 (leading or organising a group the objective of which is the production, fabrication, import, export, transport, detention, offer, cession, acquisition and unlawful use of narcotics); 224-2 (abduction and/or kidnapping—arrest, abduction, detention or imprisonment of someone without an order from an established authority and outside the cases provided by law—when preceded or accompanied by torture and/or acts of barbarity, or when followed by death of the victim); 311-10 (robbery preceded by, committed along with, or followed by either: torture and/or acts of barbarity or acts of violence leading to death).

A Right to Hope? Life Imprisonment in France  201 There are currently two procedural mechanisms that provide for the review of life sentences: parole and revision of prison tariffs. Any prisoner sentenced to a life sentence is eligible for parole after having served 18 years (or 22 years in the case of recidivism) (Article 729 of the Penal Procedural Code).25 To be paroled, prisoners must prove that they have made serious efforts towards social rehabilitation (gages sérieux de réadaptation sociale). These include having secured a professional position, internship or part-time employment, or having assiduously attended educational or vocational programmes (Article 729 of the Procedural Penal Code). Reasons for parole also include the need for medical treatment; participation in family life; compensating victims; or involvement in a serious project of integration or reintegration into society. The Tribunal d’Application des Peines decides whether or not to grant parole. For prisoners serving life sentences, the Tribunal must take into account the recommendations made by a multidisciplinary commission (Commission Pluridisciplinaire des Mesures de Sûreté), tasked with evaluating their ‘dangerousness’ (Penal Procedural Code, Article 729 para 5). Since 1978 life sentences are preceded by a prison tariff of 18 years, which can be increased to a maximum of 22 years (période de sûreté) (Article 13223, para 2 of the Penal Code).26 Prison tariffs refer to a time period during which the prisoner is ineligible for certain measures that would otherwise amend the sentence. For instance, during the tariff period, the prisoner will not be eligible for release for good behaviour under electronic surveillance, or for parole. In other words, the tariff freezes all standard avenues of release for a set period (Herzog-Evans 2012: 53). In 1994, as mentioned above, ‘whole life tariffs’ were introduced (Jolibois 1994) for a limited number of crimes listed under Articles 221-3 and 221-4 of the Penal Code, including for instance, the crime of rape or torture followed by murder of a juvenile of under 15 years of age.27 The Penal Procedural Code provides a mechanism to review and eventually revise prison tariffs, including ‘whole life’ ones, in order to take into account the prisoners’ evolution. Where an inmate sentenced to a whole life tariff has made serious efforts towards social rehabilitation, the Tribunal d’Application des Peines can, on an ‘exceptional’ basis, end or reduce the security period once the inmate has served 30 years (Article 720-4, Penal Procedural Code). In this case, a panel of three medical experts, certified by the French Supreme Court (Cour de Cassation), will

25 

These time caps do not apply to offenders who are more than 70 years old. Cour d’Assises can also decide to reduce such a tariff to a minimum of 12 years. This maximum tariff was increased to 30 years in 1986, but then reduced back to 22 in 1992. 27  Since 2011 the murder of any state official holding some form of ‘public authority’, such as a magistrate, a police officer or a prison staff member, is eligible for a life sentence combined with a whole life tariff. 26  The

202  Marion Vannier evaluate the ‘­dangerousness’ of the inmate and report back to the Tribunal (Article 720-4, Penal Procedural Code). The reduction or removal of prison tariffs, whether of 18 years or longer, does not mean that the prisoners will be released automatically from prison. They will remain incarcerated as if they were serving an ‘ordinary’ life sentence. The revision mechanism only applies to a tariff. As a result, such prisoners become eligible for the sentencing adjustment measures from which the security period up to that point had excluded them.28 In France, life sentences may appear reducible as a matter of law. Prisoners serving life sentences are eligible for procedural review after a certain number of years. Both forms of review, that is, parole and revision of prison tariffs, are highly dependent on external bodies that are tasked with measuring offenders’ ‘dangerousness’. In the case of parole, a multidisciplinary commission, including medical specialists, will determine the dangerousness of the prisoner. Where medical, rather than judicial, authorities are afforded such great discretion with regards to release decisions, it inevitably raises questions about their accountability and legitimacy. In addition, the grant of parole or tariff review is framed in terms of ‘dangerousness’, a concept which is neither defined nor detailed. The discretion awarded to non-judicial specialists combined with the lack of clarity of the notion of dangerousness may question whether the prospect of release is truly ‘realistic’. Moreover, the criteria on which prisoners are judged to be eligible for parole are highly contingent on what is provided behind prison bars. Indeed, a prisoner is expected to demonstrate having attended vocational or educational courses, or secured an employment or internship. If neither programmes nor guidance on how to secure jobs is provided, chances of parole become slim. Those sentenced to life imprisonment are generally considered to be the most dangerous and thus placed in Maisons Centrales rather than in the Centres de Détention (Herzog-Evans 2012). These high-security facilities are generally rather decrepit and decaying and the Maisons Centrales also offer fewer vocational and educational programs, thereby reducing the chances of meeting the thresholds for release (Herzog-Evans 2012). Both concerns—the discretion afforded to non-judicial bodies and the limited availability of means to meet the release criteria—point to a similar issue, that of the implementation of rather than the availability of review mechanisms. It is one thing to verify that French law provides mechanisms ensuring that life sentences will be reviewed. It is another to guarantee that such revision tools are effectively implemented. Dirk van Zyl Smit (2012)

28  Prisoners sentenced to life in prison are also eligible for compassionate release. An inmate who is terminally ill is eligible for release, unless the risk of recidivism is too great (Article 720-1-1, Penal Procedural Code). In addition, the President of the Republic withholds a constitutional right to pardon prisoners. Pardons are, however, rarely awarded (Herzog-Evans 2012: 5–58).

A Right to Hope? Life Imprisonment in France  203 has argued that human rights impact punishment in two ways: when it is imposed and later, once it is implemented. Similarly, an evaluation of life sentences’ de jure reducibility should include an assessment of the implementation of procedural review mechanisms, as it would enrich the de jure appreciation with one of fact. Before the de facto prospects of release are evaluated in section V, section IV.B discusses the case of Bodein v France in which the ECtHR evaluated the degree of hope afforded to prisoners sentenced to whole life imprisonment in France. B.  Bodein v France (2014) In Bodein v France (2014) the question of reducibility in the context of whole life sentences was brought before the ECtHR once again. Prior to the Strasburg Court’s evaluation of French perpetual incarceration (whole life tariffs combined with life sentences), the French Conseil Constitutionel had already ruled on the question twice, on both occasions upholding the punishment. The issue was first raised when the new whole life tariff was introduced in 1994 (Conseil Constitutionel Décision 20 January 1994), and a second time after a 2011 law expanded the type of crimes eligible to whole life tariffs (Conseil Constitutionnel Décision 10 March 2011). In both decisions, the Conseil Constitutionel noted that French law gave prisoners a right to ask the Tribunal d’Application des Peines to review their whole life tariffs after having served 30 years.29 As such, the punishment to lifelong incarceration did not breach the French Declaration of the Rights of Man and of the Citizen; Article 8 provides that ‘[t]he Law must prescribe only the punishments that are strictly and evidently necessary; and no one may be punished except by virtue of a Law drawn up and promulgated before the offense is committed, and legally applied’. In 2014, the Strasbourg Court similarly upheld whole life sentences in a case involving French recidivist, Pierre Bodein. Bodein, also called ‘Pierrot Le Fou’, was first sentenced in 1969 for aggravated robbery and sexual assault, and released in 1980. Bodein was arrested a second time in 1989 for

29 “13. Considérant que la disposition mise en cause prévoit que dans l’hypothèse où la cour d’assises décide que les mesures énumérées à l’article 132-23 du code pénal ne seront pas accordées au condamné, le juge de l’application des peines, après la période de sûreté de trente ans, peut déclencher la procédure pouvant conduire à mettre fin à ce régime particulier, au regard du comportement du condamné et de l’évolution de sa personnalité; que cette disposition doit être entendue comme ouvrant au ministère public et au condamné le droit de saisir le juge de l’application des peines; qu’une telle procédure peut être renouvelée le cas échéant; qu’au regard de ces prescriptions, les dispositions susmentionnées ne sont pas manifestement contraires au principe de nécessité des peines, énoncé par l’article 8 de la Déclaration des droits de l’homme.” (Conseil Constitutionnel Décision n 93-334 of 1994: para 13). A similar reasoning was followed in the 2011 case (Conseil Constitutionnel Décision n 2011-625: para 31).

204  Marion Vannier armed robbery. He pretended to be mentally ill and was placed in a psychiatric ward from which he escaped in 1992. While he was at liberty, Bodein took two hostages, one of whom he raped, and shot a policeman during the evasion. He was sentenced in 1994 to 30 years’ imprisonment and in 2004 was released for good behaviour. A few months later, he raped and killed two female juveniles and one adult woman. The criminal court sentenced him in 2007 to life imprisonment, combined with a whole life tariff; Pierre Bodein was then 66 years old. Bodein’s case is significant because it is one of the three French cases where a whole life security tariff has been attached to a life sentence.30 The Bodein case is also particularly interesting as in 2014 it proceeded all the way to the ECtHR. A close analysis of the case reveals how that Court construed the right to hope for those sentenced to perpetual incarceration in France. In line with Vinter, the Court in Bodein decided that such life sentences were compatible with Article 3 of the ECHR as long as the penal system provided a possibility of review (Bodein v France 2014: paras 54–55). The Court thus examined the prospects for review as laid down in French law. As in Vinter, the Court found that Presidential pardon and compassionate medical release did not provide prisoners with a ‘realistic’ prospect of release (Bodein 2014: para 59). Instead, the Court focused on the 30-yearreview mechanism and decided that, under this procedure, French perpetual sentences were reducible and did not breach Article 3 of the ECHR (Bodein 2014: para 61). The review, which was geared towards assessing prisoners’ dangerousness and the changes they undergo while serving their sentences, left no uncertainty as to the existence of a ‘prospect of release’ foreseeable from the outset of the sentence. The Court further held that the 30-year cap was not excessive, as the French system deducts the amount of years spent in pre-trial detention from the total amount of the sentence. As Bodein had spent four years in pre-trial detention his sentence would be reviewed after 26 years, which was deemed to be not significantly different from the 25-year cap to which the ECtHR refers in Vinter.31 In her dissenting opinion in the Bodein matter Judge Nussberger pointed to the importance of considering the ‘real’, rather than only the theoretical, possibility of release. In particular, the judge stressed the importance of taking into account the individual’s life expectancy and the age at which they are sentenced.

30  Four cases were actually sentenced to perpetual incarceration but one case was reduced to 30 years on appeal (Lechon 2009). Fourniret, Blondiau and Bodein committed similar crimes, which involved the rape and murder of young girls (C.M 2008; M.E 2009; lepoint.fr 2013; Le Figaro 2015). Fourniret and Bodein were also multiple recidivists and had been previously arrested and imprisoned. 31  The Court in Vinter also deferentially referred to member states’ ‘margin of appreciation’.

A Right to Hope? Life Imprisonment in France  205 700 600 500 400 300 200 100

Da te 19 74 19 79 19 88 19 96 20 00 20 01 20 02 20 03 20 04 20 05 20 06 20 07 20 08 20 09 20 10 20 11 20 12 20 13 20 14

0

Figure 8.1:  Number of Prisoners Serving Life Sentences Sources: Tournier (2011); Bureau des études et de la prospective (2014).

V.  PROVIDING HOPE AS A MATTER OF FACT32

To begin with, it is worth noting that the overall prison population of France has slightly increased between 2013 and 2014 while the life prisoner population has declined (Bureau des études et de la prospective 2014). Furthermore, the life prisoner population amounts to a small portion of the overall prison population. As of 1 July 2014, 478 prisoners were serving life sentences, which represents less than 6 per cent of the total carceral population (see Figure 8.1). At the same time, the number of life sentences handed down per annum has remained fairly steady since 2009, suggesting that France continues to sentence offenders to life in prison (see Figure 8.2). While life sentences have in the large part been for murder, nearly 20 per cent of the crimes for which it was imposed did not involve the death of a victim (see Table 8.1). Crimes involving juvenile victims, whether or not they resulted in their death, represented 6 per cent of the life sentences. According to Loïc Lechon and Martine Herzog-Evans, procedural reviews provide limited chances of release in practice. While prison security tariffs tend to be relatively efficiently reduced or terminated, their introduction has complicated the release processes that follow (Herzog-Evans 2012: 54; Lechon 2012: 178). In the case of prisoners serving life sentences to which automatic 18-year security tariffs are attached, the chances of then being granted parole become slim. The decision to grant parole relies on the multidisciplinary commission’s recommendation. According to Herzog-

32 Unless otherwise indicated, data drawn on in this section have been provided by the French Ministry of Justice as part of the Life Imprisonment Worldwide project at the University of Nottingham.

206  Marion Vannier 60 50 40 30 20 10

2 201

0

6

8

201

200

4

2

200

200

200

0

7

200

199

5

3

199

199

1

9

199

198

6

4

198

198

2

0

198

198

Dat

e

0

Figure 8.2:  Number of Life Sentences handed down per Year Sources: Tournier (2011); Bureau des études et de la prospective (2014).

Table 8.1:  Life Sentences—Type of Crimes Type of crimes Premeditated murder

Distribution of life sentences as of 1st July 2014 156

Murder

87

Felony Murder

57

Murder of a juvenile

13

Voluntary manslaughter

50

Aggravated rape

20

Rape of a juvenile

12

Aggravated theft

22

Abduction or corruption of a minor

6

Aggravated sequestration, abduction or arrest

20

Torture or acts of barbarity

11

Destruction of property followed by death Undetermined Total

6 18 478

Evans, the members of such commissions are not qualified to assess either risk or ­dangerousness (2012: 61–62). Furthermore, there are no scientific studies evaluating the degree of risk posed by prisoners sentenced to life

A Right to Hope? Life Imprisonment in France  207 imprisonment on which the commission can rely, nor have methodological tools been developed to measure such risk to assist the commissioners. For Herzog-Evans the prospects of release have thus become ‘illusory’ (2012: 63). Similarly, in his study carried out on a sample of prisoners sentenced to life terms, Loïc Lechon found that a large majority of prisoners eligible for parole retained a very remote, if not ‘non-existent’, chance of being released (2012: 187). Excluding the large portion of participants who had not asked to be paroled (that is, for ideological, medical or social reasons) Lechon (2012: 179–83) demonstrated that life prisoners who did request release were rarely granted parole: 32 per cent were rejected. Their level of dangerousness was the main reason given for their being denied parole. Such findings led Lechon to claim that ‘true’ life incarceration existed in France (Lechon 2012; see also Lechon 2009). He found further that of the prisoners who had been granted parole, few had been released within the 18-year time frame. Similarly, in 2014, 13 life prisoners were paroled, of whom nine had served 15 to 25 years, three had been incarcerated for 25–35 years and one had been imprisoned for over 35 years. On average, they had served 25 years. When evaluating the realistic prospects of release, it is essential to take into account the duration of life sentences. According to the few studies that have been carried out the duration of life sentences has increased over the years. Robert Badinter commissioned the first study in 1981 as he wished to know the ‘actual’ duration of perpetual sentences (Tournier 2012: 80).33 The research included prisoners sentenced to death who had been pardoned and those sentenced to life imprisonment who had been released between 1961 and 1981. During that period, the average duration of a life sentence was 17.4 years for those sentenced to life imprisonment (Tournier 2012: 80). The second study was completed in the early 1990s. It found that, by 1989, the duration of life sentences had increased slightly, from an average of 17.4 to 17.9 years (Tournier 2012: 80, references omitted). In a third, the statistician Annie Kensey found that in 2005 a life sentence lasted on average 19.5 years, which represented a two-year increase in comparison to those who had been released in the 1970s (cited in Tournier 2012: 81–82). A majority of the prisoners had been incarcerated for more than 15 years and 20 per cent had been held for 22 years (Tournier 2012: 82). The latest available statistics show that, since 2005, the time prisoners spend in prison has continued to increase. Of the total 478 inmates serving life sentences in 2014, nearly 60 per cent had served over 15 years of imprisonment with 20 per cent of the prisoners having been locked up for 25–35 years and 3 per cent for more than 35 years (see Table 8.2). 33 

In 1981, prison tariffs of 18 years could be adjoined to life sentences.

208  Marion Vannier Table 8.2:  Length of Time Served when Sentenced to Life Imprisonment Length of time served (years)