There is an inordinate amount of material which has been published on the debate for and against Capital Punishment and I will therefore briefly summarise the main arguments. Those in favour in favour of the death penalty will inevitably argue parallel with the theory of retribution (‘just deserts’) that someone who kills should be killed themselves; “Whosoever sheds man’s blood, by man shall his blood be shed”(Genesis 9:6). On the other hand the abolitionist will retaliate by putting forward the notion that innocent people may be wrongfully hung. This is an particularly valid opinion owing to the fact that many people would prefer to see a few offenders walking the streets rather than a few innocent people dead. Opposing this again are the retentionists who believe public safety to be the most important issue and the death penalty to be the most effective way to ensure this. However, research has shown that the majority of murderers kill for a personal purpose rather than randomly and are therefore unlikely to re-offend.
Some even share the view that capital punishment is hypocritical because punishing with death differs only narrowly (by moral standards) from murder itself. This sets an appalling example and is even against many religions whose belief is that G/d is the only person who should have the decision to take life, not the State. Bearing all this in mind, one is lead to pose the question; what sort of person would want to be a hangman and bear the brunt of so many moral and religious issues?
The Government at the time (Mid 50’s) was greatly in favour of the death sentence (partly because the only acceptable alternative was a life sentence which appeared to have many disadvantages) and in an attempt , mainly to block a Bill which was trying to be passed by the abolitionists, the Homicide Act 1957 was finally passed. This bill altered the nature of punishment for murders while retaining the death penalty for certain Capital crimes. The Act’s main purpose was to ‘limit the scope of Capital Punishment’ (Queen Elizabeth). In spite of the perceived problems with a life sentence ( which I will detail later) the Act did in fact produce a mandatory life sentence for specific types of murder and, so we finally see the beginning of the life sentence in it’s modern form as we know it today.
As previously mentioned the Homicide Act 1957 was in part a political ‘trick’ to prevent the abolition of Capital Punishment, but the abolitionists, lead primarily by Sydney Silverman were not ready to surrender. In 1964 Sydney Silverman presented the Murder (Abolition of the Death Penalty) Bill to the House of Commons. After a tiresome period of debates in both the Commons and the Lords, and a great number of amendments, on the 8th November 1965 Silverman’s Bill received the Royal Assent and was passed. During one of the committee stages an amendment was made which limited the Act to a five year period rather than it being permanent. At the end of this trial period the Act was again brought forward for debate in both Houses. It was noted that during the experimental five years (1965-1969) the lifer population in prisons had increased by approximately four hundred. (Cullen and Newell) It was realised that a mandatory life sentence was going to place a heavy financial burden on the state, a burden which had not been predicted. In spite of the aforementioned it seemed that the overall majority did not want to see the return of the death penalty and following another lengthy parliamentary debate the Act was made permanent. The Lord Chancellor, Gerald Gardiner expressed his view that ‘…human beings who were not infallible ought not to choose a form of punishment that was irrevocable.’ (Block and Hostettler)
The origin of the life sentence has now been described but it is of equal importance to view it in it’s modern form. In order to do this in full it is necessary to look both at the different forms it may take when being passed as a sentence in court (discretionary or mandatory), and it’s structure. According to Cullen and Newell a life sentence in Britain can be delivered in three different ways. Persons aged 21 and over who are convicted of murder will receive life imprisonment as this is the mandatory sentence. For certain other serious offences the judge has the discretion to impose a life sentence if he feels it is necessary. The discretionary life sentence was developed in the 1950’s as a from of preventative detention where a longer sentence than was usual for a crime was given in order to protect the public from an offender who was believed to be a menace to society. The crimes which carry a discretionary maximum sentence are; manslaughter, robbery, arson, rape, kidnapping, and causing an explosion.
The third way in which a judge may impose a life sentence is under the ‘Two Strikes’ rule. This law was imitated from the American version, ‘Three Strikes and your out’ in which an offender who commits a third offence (no matter how trivial) receives a life sentence. Under the Crime (sentences) Act 1997 a person who commits a second serious offence is given ‘life’. Although the British ‘Two Strikes’ seems far more sensible than the American ‘Three Strikes’ as it is aimed only at serious, harmful criminals, it remains to be one of the most controversial pieces of legislation. Although the ‘Two Strikes’ rule successfully adheres to the issue of public protection it fails to account for any other aspect. This law has and still is causing an upward surge in the prison population therefore adding to the already existing problems of overcrowding and lack of funding. The ‘Two Strikes’ principle can be seen as ironic: surely if the aim of ‘Two Strikes’ is to put a stop to re- offenders then it should apply to crimes such as car theft, which although are less serious, are often repeated again and again. Perhaps a piece of legislation could be introduced along the lines of this rule but to a lesser degree. For example traffic offenders committing their second offence should be band from driving.
As previously discussed the abolition of the death sentence in 1965 lead to a search for a punishment for murder which would meet the retributive and protective needs of the public whilst also acting as a suitable deterrent and providing possibilities of rehabilitation. The life sentence was believed to meet those requirements and was thus set as the mandatory punishment for murder. The life sentence was the only reasonable alternative to the death penalty and although it has served as a suitable replacement it has also produced many problems.
“Life sentences are in some ways the price we had to pay for the abolition of the death penalty. It is a price that is becoming increasingly high.” (Michael Bartlet, Parliamentary Liaison Secretary).
Over the last thirty years the number of lifers in prison has rapidly increased . This is mainly due to the introduction of discretionary life sentences for other offences such as manslaughter, rape and arson. In 1970 there were 730 lifers in custody, by 1980 this had doubled to 1584 and by 1990 this figure had increased to 2795. Recent reports show that in 1999 there were over 4000 lifers in prison.It is expected that as a result of the ‘Two Strikes’ rule the lifer population will increase by a further 1000 over the next four years.
The mandatory nature of the life sentence is a threat to the independence and discretion of the judiciary. It is morally unfair and unjust, both to the accused and to the judge, that the mandatory sentence prevents the judge from distinguishing between different genres of murder. The same punishment is bestowed upon a person who may have instigated the mercy killing of a loved one, and a cold blooded killer whom for example shot someone in the course of a robbery. Why should the former receive the same sentence as the latter who had vicious intentions. However, the issue is cloudy because according to the law both parties could be said to have malice aforethought ( direct intention to kill or cause grievous bodily harm), the difference lies with the moral issues. An example of a mercy killing causing controversy is the famous Euthanasia case of Anthony Bland. After a serious accident Anthony Bland suffered severe injuries and was left in a vegetative state unable to function at all. His parents were forced to appeal to the House of Lords ( a lengthy and expensive process) to allow them to turn off their sons life support machine in order to avoid being convicted of murder and being given a life sentence.
Another criticism of the administration of the mandatory life sentence is the influential role of politicians. After a lifer has served his/her tariff and satisfied other requirements, for example showing they have been rehabilitated and are no longer a risk to society, the Parole Board may recommend them for release. The final decision however does not come from the parole board, but from the Home Secretary. The Home Secretary must consider whether releasing a lifer will “undermine public confidence in the life sentence system.” (Cullen and Newell 1999: 23)
Firstly this political interference not only threatens but also undermines the independence of the judiciary, as it blurs the distinction between the judiciary and politicians. The political role patronises the executive because the Home Secretary will very often disagree with the Parole Board who have recommended the release. This is completely illogical as the Parole Board clearly has a much greater knowledge of this area than a politician. A person with little or no legal training should not be granted so much power in the area of release especially when they are often guilty of being ultra vires (going beyond the power). In these instances the Home Secretary can use this ‘power’ to gain himself popularity and an increased amount of votes by refusing to grant release if it is against public opinion. This was the case with Myra Hindley, and as much as she is thought of as an evil woman it should not be a decision based solely on the morals of a politician, it should be a legal one. Another example of the Home Secretary’s involvement in sentencing can be seen in the case of James Bulger where Mr Howard (Home Secretary) tried to increase the Tariff of the murderers from ten to fifteen years and he appealed to the House off Lords. However in his case, R V Secretary of State for Home Department ex p Thomson and Venables (1996) the House of Lords ruled that the Home Secretary had acted improperly in taking into account public petitions. (Cappi, P and Collins, M 1997).
A third problem with the administration of the mandatory life sentence in Britain, a problem which was perceived in the 1950’s, is the management of lifers. The opinion was, and still is that receiving a life sentence results with the prisoners having a sense of hopelessness and lack of motivation. It is probable that these feelings stem from losing hope of ever being released because even with a single life sentence of 25 years release is a mere blur in the distance. The danger here is this depression often leads to hostility and aggression towards other inmates as well as prison staff. At present lifers are managed through a structured plan whereby the prisoners progress through decreasing security locations beginning in a high security centre and finishing by partaking in a pre- release employment scheme (PRES). Adding to this depression is the realisation by many lifers that after release being accepted back into society is only a remote possibility.
As a result of the aforementioned problems many bodies have recommended the abolition of the mandatory life sentence. The most recent body to recommend this was the Penal Affairs Committee in 1995. However, in spite of these recommendations the life sentence has survived but at the very least it is in desperate need of refurbishment. In 1999 the parliamentary dialogue group on life sentences made some recommendations.
The life sentence should be made the maximum penalty for murder, not the mandatory, this would solve or at least improve a number of problems. Firstly, it would allow for the expanded discretion of judges who would be able to take into consideration aggravating and mitigating factors. A judge therefore only need rule ‘life’ for callous forms of murder, thus allowing a clear distinction to be made between mercy killings and cruel killings. If life was the maximum sentence for murder a decreasing amount of offenders would receive this sentence resulting in a diminishing lifer population. This factor is of paramount importance because at present the figures for lifer population in England and Wales exceed the rest of Europe combined (Cullen and Newell).
The decision to release a prisoner should be removed from the Home Secretary and be made subject to an executive and/or judicial process. An effective way accomplish this solution would be to extend the release procedures of discretionary lifers to mandatory lifers as well. Under the Criminal Justice Act 1991 Discretionary Lifer Panels were introduced, which delegated the decision of release to the Parole Board. Perhaps a new piece of legislation should be conceded introducing Mandatory Lifer Panels!.
Finally, management of lifers is a delicate and complex area. Greater consideration in the care and rehabilitation of offenders is required as well as closer assessment to ensure that the risks represented by a lifer on release are minimal. Cullen and Newell suggest that a lifers Life Sentence Plan should be the basis of the decision for their location and management, in order to successfully rehabilitate them and develop their opportunities for release. It has also been recommended that the training of prison staff should be expanded to include aspects such as psychology of murder. This would enable the staff to gain a broader insight and understanding of the prisoners thus making them better equipped to deal with lifers. In response to the problem of the risk of releasing offenders Cullen and Newell advise the extension of the current system of risk assessment to all cases so that public protection is ensured without being over cautious.
In conclusion, it is clear that the life sentence for murder is a necessary tool in order that the courts may secure a severe punishment for murder and satisfy both the retributive and protective needs of society. However many improvements (such as the ones previously mentioned) are needed to ensure that the existing problems with the life sentence and its administration do not cause any grave injustices.
Bibliography
Block, B and Hostettler, J (1997) Hanging in the Balance. Waterside Press: Winchester
Cappi, P and Collins, M (1997) A Level Law- Paper1. Cavendish Publishing: London
Cullen, E and Newell, T (1999) Murderers and Life Imprisonment - containment, treatment, safety and risk. Waterside Press: Winchester.
Great Britain Advisory Council on the Penal System (1978) Sentences of Imprisonment. London: Her Majesty’s stationary Office
Strickland, C (1998) The English Legal System. Addison Wesley Longman: Essex
- Submission from crime and society dialogue group, on life sentences.
Great Britain Advisory Council on the Penal System (1978) Sentences of Imprisonment. London: Her Majesty’s stationary Office
Block, P and hostettler, J (1997) Hanging in the Balance. Winchester: Waterside Press
Quote from Block, B and Hostettler, J 1997
The rules laid down in the case of R v M’Naghten which decide whether a defendant is legally insane
Holy Bible, Book of Genesis, Chapter 9. 6
A Backbench MP who fought the debate against Capital Punishment for approximately 30 years.
Quote from Crime and society parliamentary dialogue group on life sentences.
Statistics from Crime and society parliamentary dialogue group on life sentences.
