Should the United States End Life Imprisonment Without Parole?

7 November, 2022

 

The Major­i­ty of Oth­er Coun­tries Offer the Hope of Release 

 

Opin­ions pub­lished in The Markaz Review reflect the per­spec­tive of their authors and do not nec­es­sar­i­ly rep­re­sent TMR. 

 

Stephen Rohde

 

As the move­ment to end the death penal­ty in the Unit­ed States gains momen­tum — two-thirds of the states (36 out of 50) have either abol­ished cap­i­tal pun­ish­ment or con­duct­ed no exe­cu­tions in at least 10 years — seri­ous atten­tion is being paid to Life Impris­on­ment With­out Parole (LWOP), which is on the books in every state, except Alas­ka. In the 27 states that have retained cap­i­tal pun­ish­ment, the only alter­na­tive sen­tence is LWOP. 

 Is it inhu­mane, cru­el, and unusu­al to sen­tence some­one to prison for the rest of his or her life with­out any pos­si­bil­i­ty of being released, espe­cial­ly when the inmate has exhib­it­ed gen­uine remorse and has demon­strat­ed the capac­i­ty to lead a pro­duc­tive and law-abid­ing life out­side prison?  As with oth­er fea­tures of the U.S. crim­i­nal legal sys­tem, there is much we can  learn from coun­tries that have abol­ished cap­i­tal pun­ish­ment, in terms of how they apply alter­na­tive forms of punishment. 

Life Impris­on­ment With Parole (LWP), where release is rou­tine­ly con­sid­ered by a court, parole board, or sim­i­lar body, is the most com­mon type of life impris­on­ment in the world, accord­ing to research con­duct­ed by Dr. Cather­ine Apple­ton and  Pro­fes­sor Dirk van Zyl Smit of the Life Impris­on­ment World­wide Revis­it­ed project at the Uni­ver­si­ty of Not­ting­ham (on which the data in this arti­cle is based).  In 144 of the 183 coun­tries (79 per cent) that were iden­ti­fied as hav­ing for­mal life impris­on­ment, there is no LWOP; there is always some pro­vi­sion for release, even for the most heinous crimes. 

Detail of the Tehachapi prison mur­al (cour­tesy Marc Azoulay).

The US is an out­lier. More than 50 per cent of all pris­on­ers serv­ing LWOP around the world are in the US. 22 US states even impose LWOP for non-vio­lent offens­es. While LWOP has been abol­ished in most Euro­pean coun­tries, it has recent­ly been adopt­ed in India and Chi­na, both of whom also have the death penal­ty. That is the com­pa­ny the US keeps. 

The Unit­ed Nations Con­ven­tion on the Rights of the Child express­ly pro­hibits LWOP for chil­dren. Although every oth­er coun­try in the world is a sig­na­to­ry to the Con­ven­tion, the US is not. On the con­trary, the US Supreme Court has ruled that LWOP may be imposed on chil­dren in “very excep­tion­al” cas­es, pro­vid­ed there is some kind of review from time to time. 

Apple­ton and van Zyl Smit have also gath­ered data on statu­to­ry min­i­mum terms in 98 coun­tries where LWP is imposed. The aver­age min­i­mum was 18.3 years. 29 coun­tries (30 per cent) set their min­i­mum peri­od at 25 years or more while in almost half (46 per cent) the min­i­mum peri­od was 15 years or less. 

Accord­ing to Apple­ton and van Zyl Smit, research shows the severe psy­cho­log­i­cal and soci­o­log­i­cal dam­age caused by a life sen­tence, with inmates describ­ing “a tun­nel with­out light at the end” and “a slow, tor­tur­ous death.” LWOP pris­on­ers express a pro­found and grow­ing sense of loss and lone­li­ness and the real­iza­tion that many fam­i­ly mem­bers will most like­ly die while they are in prison. To add insult to injury, since LWOP pris­on­ers will nev­er be released, they are deprived of any reha­bil­i­ta­tive oppor­tu­ni­ties, lead­ing to sheer hope­less­ness and men­tal dete­ri­o­ra­tion. In the US, many LWOP pris­on­ers, includ­ing chil­dren, are denied access to edu­ca­tion­al and voca­tion­al train­ing, based on the mad­den­ing premise that they are beyond redemption. 

Mean­while, a grow­ing body of evi­dence from dif­fer­ent coun­tries indi­cates that recidi­vism and re-arrest rates among released life-sen­tenced pris­on­ers are low com­pared to oth­er released pris­on­ers.  Research exam­ined by Apple­ton and van Zyl Smit shows that very few released life-sen­tenced pris­on­ers com­mit fur­ther crimes and that, despite fac­ing sig­nif­i­cant bar­ri­ers, they are able to reset­tle suc­cess­ful­ly, espe­cial­ly when they are pro­vid­ed with pro­grams and super­vi­sion in the com­mu­ni­ty that sup­port new non-crim­i­nal, pro-social iden­ti­ties, a strong sense of self-effi­ca­cy and respon­si­bil­i­ty, and a deter­mi­na­tion to succeed.

A UN report in 1994 con­clud­ed that life impris­on­ment should be “imposed only when strict­ly need­ed to pro­tect soci­ety and ensure jus­tice, and…only on indi­vid­u­als who have com­mit­ted the most seri­ous crimes.” It not­ed that “it is essen­tial to con­sid­er the poten­tial­ly detri­men­tal effects of life impris­on­ment.”  The report pro­posed that coun­tries should pro­vide a pos­si­bil­i­ty of parole for all per­sons sen­tenced to life impris­on­ment, includ­ing those con­vict­ed of murder. 

In 2013, the Euro­pean Court of Human Rights held that it is a vio­la­tion of human dig­ni­ty to deny life pris­on­ers any prospect of release or review of their sen­tence.  The three appli­cants in the case of Vin­ter v. Unit­ed King­dom were each con­vict­ed of mur­der in the UK and were sen­tenced to “whole life,” that is LWOP.  They argued that their sen­tences were incon­sis­tent with Arti­cle 3 of the Euro­pean Con­ven­tion of Human Rights which pro­vides that “no one shall be sub­ject­ed to tor­ture or to inhu­man or degrad­ing treat­ment or pun­ish­ment.” While the low­er court held life impris­on­ment was jus­ti­fied by the legit­i­mate goals of pun­ish­ment and deter­rence, the Court’s appel­late Grand Cham­ber held (by 16 votes to one) that an irre­ducible life sen­tences may infringe Arti­cle 3 since the review of a sen­tence is nec­es­sary because the grounds for deten­tion (pun­ish­ment, deter­rence, pub­lic pro­tec­tion and reha­bil­i­ta­tion) may change dur­ing lengthy impris­on­ment. The Grand Cham­ber not­ed the sup­port in Euro­pean domes­tic and inter­na­tion­al law for a guar­an­teed review with­in the first 25 years of a sentence.

The rul­ing not­ed that a prospect of release is nec­es­sary because the weight of Euro­pean and inter­na­tion­al law sup­ports the prin­ci­ple that all pris­on­ers, includ­ing those serv­ing life sen­tences, be offered the pos­si­bil­i­ty of reha­bil­i­ta­tion and the pos­si­bil­i­ty of release if reha­bil­i­ta­tion is achieved. Draw­ing on these sources, the Grand Cham­ber con­clud­ed that it would be a vio­la­tion of human dig­ni­ty to detain some­one with­out any chance of release.

One com­men­ta­tor indi­cat­ed that the Vin­ter deci­sion “cat­a­logues a glob­al con­sen­sus on the prop­er goals of deten­tion. Among many cita­tions to inter­na­tion­al doc­u­ments, the Grand Cham­ber referred to Coun­cil of Europe mate­ri­als, the Unit­ed Nations Stan­dard Min­i­mum Rules for the Treat­ment of Pris­on­ers, and the Inter­na­tion­al Covenant on Civ­il and Polit­i­cal Rights (ICCPR). From these it evi­denced a con­sen­sus in inter­na­tion­al law that the reha­bil­i­ta­tion of offend­ers should be a key aim of penal deten­tion.”  Reducibil­i­ty does not mean that a life sen­tence must actu­al­ly be reduced when a pris­on­er remains dan­ger­ous. But it vio­lates human dig­ni­ty to deny life pris­on­ers even a faint hope of release.

Arti­cle 10(1) of the ICCPR states that “All deprived of their lib­er­ty shall be treat­ed with human­i­ty and with respect for the inher­ent dig­ni­ty of the human per­son,” and Arti­cle 10(3) states that the pur­pose of the pen­i­ten­tiary sys­tem is the “ref­or­ma­tion and social reha­bil­i­ta­tion” of pris­on­ers. It indi­cates that every pris­on­er should have the oppor­tu­ni­ty to be reha­bil­i­tat­ed back into soci­ety and lead law-abid­ing and self-sup­port­ing lives, even those con­vict­ed of the most seri­ous offences. Sim­i­lar­ly, Arti­cle 110(3) of the Rome Statute of the Inter­na­tion­al Crim­i­nal Court does not allow LWOP sen­tences, and instead calls for a manda­to­ry review of life sen­tences after 25 years. The Unit­ed Nations Hand­book on the Man­age­ment of High-Risk Pris­on­ers under­lines the need to approach the man­age­ment of dan­ger­ous or high-risk pris­on­ers in a pos­i­tive, humane and pro­gres­sive manner.

At a region­al lev­el, the Coun­cil of Europe has been the most active body in devel­op­ing rec­om­men­da­tions for the treat­ment and man­age­ment of life and long-term pris­on­ers. It states that the aims of life and long-term prison regimes should be (i) “to ensure that pris­ons are safe and secure places for these pris­on­ers and for all those who work with or vis­it them”; (ii) “to coun­ter­act the dam­ag­ing effects of life and long-term impris­on­ment”; and (iii) “to increase and improve the pos­si­bil­i­ties for these pris­on­ers to be suc­cess­ful­ly reset­tled in soci­ety and to lead a law-abid­ing life fol­low­ing their release.”

It is high time the US seri­ous­ly exam­ine the wide­spread use of LWOP through the lens of the human­i­tar­i­an prin­ci­ples of inter­na­tion­al law which rec­og­nize the tran­scen­dence of human dig­ni­ty and the capac­i­ty for reha­bil­i­ta­tion in every per­son, includ­ing those who have com­mit­ted heinous crimes.  Just as the US is final­ly begin­ning to see the flaws and cru­el­ty of exe­cu­tions, it can­not ignore the inhu­man­i­ty of the “slow, tor­tur­ous death” of life impris­on­ment with­out any hope of release. 

 

The views expressed in this arti­cle are Stephen Rohde’s and are not made on behalf of any orga­ni­za­tion. Mr. Rohde would like to thank Ines Hor­ta Pin­to, PhD in Crim­i­nal Law from the Uni­ver­si­ty of Coim­bra, Por­tu­gal, for assist­ing in the research for this article. 

Stephen Rohde is a writer, lecturer and political activist. For almost 50 years, he practiced civil rights, civil liberties, and intellectual property law. He is a past chair of the ACLU Foundation of Southern California and past National Chair of Bend the Arc, a Jewish Partnership for Justice. He is a founder and current chair of Interfaith Communities United for Justice and Peace; member of the Board of Directors of Death Penalty Focus, and a member of the Black Jewish Justice Alliance. Rohde is the author of American Words of Freedom and Freedom of Assembly and numerous articles and book reviews on civil liberties and constitutional history, for the Los Angeles Review of Books, American Prospect, LA Times, Ms. Magazine, Los Angeles Lawyer and other publications. He is co-author of Foundations of Freedom published by the Constitutional Rights Foundation.

capital punishmentcorrectionsDeath penaltyimprisonmentlife with parolelife without parolepunishment

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