Life Without Parole

Between my court visits and Human Rights Clinic shadowing, I have been working on an opinion for HRAC on the Constitutional Review Commission’s recommendations for the new Constitution (see post here http://theflyinglawyer.blogspot.com/2014/07/hrac-my-second-assignment.html).

One of the recommendations that particularly struck me was that the death penalty be abolished and be replaced with the punishment of life without parole. Whilst the formal abolition of the death penalty is, in my opinion, undoubtedly a good thing (Ghana has been abolitionist in practice since 1993), I was concerned that the Commission advocated the sentence of life without parole without any analysis of the human rights implications of imposing such a sentence.

The attraction for the CRC of recommending life without parole as an alternative to the death penalty is understandable. It would allow the government to clam they are protecting the public by permanently removing serious offenders from society and appeases public outcry at the release of convicts on parole. However, the reality of the alternative punishment is frequently a protracted, hopeless death in unspeakable conditions (for more on this see this article by Garden Court Chamber’s Tom Stoate http://www.theguardian.com/profile/tom-stoate). This has serious human rights implications which have not at all been addressed in the CRC’s analysis.

Whole life sentences, for example, fail to take into account an individual’s capacity for redemption and rehabilitation, something of which there is growing legal recognition. Although and individual’s right to liberty under Art. 9 of the International Covenant on Civil and Political Rights (ICCPR) is a qualified right, and can be deprived in accordance with the law on the basis of ensuring public safety; where an individual no longer represents a threat to society and has demonstrated genuine remorse, any further period of imprisonment may be deemed arbitrary and thus unlawful. Art. 10 ICCPR states that detained persons must be treated with human dignity, and arbitrary incarceration is cruel and undignified.

There is a growing body of case law condemning the use of whole life or other indeterminate sentences. For example, in James, Wells and Lee v the United Kingdom (2012) ECHR 1706,  the European Court of Human Rights ruled “arbitrary and unlawful” the operation of indeterminate sentences, currently being served by prisoners in England and Wales. Justice Bratza, the President of the Court said:

“I consider that the time has come when the court should clearly affirm that the imposition of an irreducible life sentence, even on an adult offender, is in principle inconsistence with article three [freedom from torture or cruel, inhuman or degrading treatment or punishment] of the [European] convention”.

In 2006, Lord Phillips, former President of the Supreme Court of England and Wales said:

“Some murderers are being sentenced to a minimum of 30 years, or even full-life terms. But I sometimes wonder whether, in 100 years’ time, people will be as shocked by the length of sentences we are imposing as we are by some of the punishments of the 18^th century.”

In Vinter v the United Kingdom [2012] ECHR 61, the Grand Chamber of the European Court of Human Rights held that whole life sentences, where the prisoner has no hope of release, were inhuman and degrading and therefore unlawful. The Court held that for the Convention to be compatible with the European Convention, there had to be both a possibility of release and a possibility of review.

Art. 10 ICCPR states that the “essential aim” of the penitentiary system is “reformation and social rehabilitation”. The essential aim is not, therefore, punishment or revenge. Imprisonment for life with no hope of parole destroys any possibility of social reformation. Nowhere is this clearer than in the case of Douglas Vinter, who was sentenced to whole life imprisonment in the UK after committing a double murder. In a letter he wrote to the Guardian newspaper he said:

“I am sitting in the segregation unit and have been for a number of weeks. I was involved in a stabbing (not fatal) on the wing. You see how I can admit in a letter to an offence as serious as that. It’s because the judge when he sentenced me to natural life gave me an invisible licence that said I can breach any laws I want, no matter how serious, and the law can’t touch me. I’m above the law. I said to the governor, don’t waste any money on investigations, just give me another life sentence for my collection. They don’t mean anything any more.”

Whole life sentences are even more disturbing when they are made mandatory, and there is a growing body of case law which indicates that the imposition of a mandatory life term of imprisonment offends the principles of a fair hearing. This is particularly so where a sentencing hearing gives the court no scope to mitigate a life term regardless of an individual’s personal circumstances and the circumstances of the offence for which they fall to be sentenced. In The State v Vries [1997] 4 LRC, the High Court Namibia held that a mandatory minimum sentence was unconstitutional as it infringed the protection against cruel, inhuman and degrading treatment guaranteed by Art. 8(2)(b) of the Constitution. This was followed in State v Likuwa [2000] 1 LRC 600, where mandatory minimum sentences were struck out for all purposes.

Lord Bingham, sitting in the Privy Council in the De Boucherville case said:

“The sentence of life imprisonment is now the most severe penalty for which the law provides. There is ground for concern if the sentence is imposed on those who, despite the seriousness of their crime, could be adequately punished by a determinate sentence. Indeed, any mandatory or minimum mandatory sentence arouses concern that it may operate in a disproportionate manner in some cases. It was considerations of this kind which led the Supreme Court of Canada to conclude that a mandatory 7 year minimum sentence for importing drugs was incompatible with section 12 of the Canadian Charter of Rights and Freedoms, which guaranteed that no one should be subjected to cruel and unusual treatment or punishment: R v Smith (Edward Dewey) [1987] 1 SCR 1045.”

The Statute of the International Criminal Court, which deals with the grossest offences, including genocide, provides for a maximum of 30 years imprisonment. Even this can only be justified by the “extreme gravity of the crime and the individual circumstances of the convicted person”.