Taking Life Imprisonment Seriously:In National and International Law

TAKING LIFE IMPRISONMENT SERIOUSLY in National and International Law

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TAKING LIFE IMPRISONMENT SERIOUSLY SERIOUSLY

TAKING LIFE IMPRISONMENT

IN NATIONAL AND INTERNATIONAL LAW

by

DIRK VAN ZYL SMIT

KLUWER LAW INTERNATIONAL THE HAGUE / LONDON / NEW YORK

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

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

TABLE OF CONTENTS

Acknowledgements List of Tables

ix xi

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

1 1 4 7 1 10 12 14 16 17

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

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

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

78 78 84 84 85

v

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

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

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

135 135 139 143 145 150 152 155 161 164

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

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

CHAPTER 6 - TAKING LIFE IMPRISONMENT SERIOUSLY? 1. Introduction

197 197

VI

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

198 200 201 204 207 212 214 217

BIBLIOGRAPHY

218

TABLE OF CASES

233

INDEX

237

vii

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ACKNOWLEDGEMENTS

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

IX

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

x

LIST OF TABLES

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

22

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

24

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

26

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

80

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

82

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

83

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

136

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

137

XI

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CHAPTER 1

STUDYING LIFE IMPRISONMENT

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

1

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

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

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

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

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

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

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

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

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

7

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

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

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

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

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

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

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

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

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

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

15

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

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

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

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

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

19

CHAPTER 2

THE UNITED STATES OF AMERICA

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

20

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

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

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

Offense

Male

1st degree murder

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

Female

2nd degree murder

Kidnapping

Drug charges

Sex offenses

Other

87 126

2548 739 467 11 275 500 149 397 774

58 24 27 492 12 3 6 10

336 280 6287 386 130 143 313

94 2 4206a

16 11 866a

34 14 a

a

196 61 406a

8 77 140

6 15 21

0 2 2

2 141 51

6 25 257

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

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

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

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

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

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

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

790 396 22 19 68 1 8d 159 38

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

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

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

11 11 X 42 1 X 5 0

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

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

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

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

Life Sentences

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

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

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

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

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

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

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

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