July 19, 2013
ECHR on LWOP: thoughts on Vinter and possible US impact
As noted in this recent blog posting, a landmark ruling from the European Court of Human Rights earlier this month involving UK nationals declared that LWOP sentences without any prospect of release amount to inhuman and degrading treatment of prisoners. As I mentioned in that post, I know very little about how ECHR rulings can impact domestic laws even in countries that have adopted the applicable convention.
But as my title for this post hints, I am especially intrigued by what the decision in Case of Vinter and Others v. the United Kingdom (available via this link) could mean for sentencing law and practices in the US. I suspect the simple answer is just "not much," but I am eager to cover any potential domestic post-Vinter storylines and will be posting soon some thoughts from my of my OSU colleagues on this front.
Before getting into implications, though, I thought it worthwhile to reprint this effective summary of the Vinter ruling from the heart of a brief concurring opinion by Judge Power-Forde:
[W]hat tipped the balance for me in voting with the majority was the Court’s confirmation, in this judgment, that Article 3 encompasses what might be described as “the right to hope”. It goes no further than that. The judgment recognises, implicitly, that hope is an important and constitutive aspect of the human person. Those who commit the most abhorrent and egregious of acts and who inflict untold suffering upon others, nevertheless retain their fundamental humanity and carry within themselves the capacity to change. Long and deserved though their prison sentences may be, they retain the right to hope that, someday, they may have atoned for the wrongs which they have committed. They ought not to be deprived entirely of such hope. To deny them the experience of hope would be to deny a fundamental aspect of their humanity and, to do that, would be degrading.
In addition to capturing what seems to me to be the essence of the lengthy opinions in Vinter, I think this sentiment indirectly reflects what has been moving the US Supreme Court in its recent Graham and Miller Eighth Amendment rulings. Do other agree? And do others expect, as I do, that Vinter is very likely to be cited a fair amount in the briefing (and perhaps even in some opinions) the next time SCOTUS takes up some follow-up issues raised in Graham and Miller?
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Even if we assume that there is a "right to hope" and that it goes no farther than that, then I see no reason why LWOP is inhuman provided there is a pardon provision in domestic law. If there is then they can hope for some form whether it be a pardon, clemency, or commutation and that would seem to satisfy a "right to hope." To say that the "right to hope" bars LWOP you are now quantifying how much hope one has a right to not just that is generally exists. So I find the judges assertion pretty dubious and open to the whims of a judge/justice on their own policy judgments.
Frankly given such a long history of capital punishment and LWOP I see no basis for a "right to hope." Nor do I see how it is inhumane to say you've committed such an evil act that you don't deserve to be free.
This quote is particularly troubling, "Those who commit the most abhorrent and egregious of acts and who inflict untold suffering upon others, nevertheless retain their fundamental humanity and carry within themselves the capacity to change." Are you sure they have the capacity to change? What is that assertion based on? And even if true why is rehabilitation a necessary goal of punishment? Or why does it trump the goal of retribution? There is nothing inherent about this that makes it something a judge should be deciding. It is a policy judgment of the balancing of goals of punishment which should be left to the legislature.
I am sure it will be cited in briefs and probably a few dissents. I don't see it in a majority opinion. Even Graham and Miller were basing it off of the science of a juvenile's mental development and not general principles of being inhuman. Further the test that is purported to be used when determining 8th amendment issues found in Ring, Roper, and Kennedy say to look at trends. Is there any state that categorically bars LWOP sentences?
Posted by: Matt | Jul 19, 2013 12:14:52 PM
Will some fugitives use this ruling to block their extradition to countries having L.W.O.P. as they already do for death penalty?
As for the balancing of the penological objectives, I agree with Matt.
Posted by: visitor | Jul 19, 2013 1:19:27 PM
"Hope is the necessary condition of mankind, for we are all created in the image of God. A judge should be hesitant before sentencing so severely that he destroys all hope and takes away all possibility of useful life." U.S. v. Carvajal, 2005 WL 476125 (S.D.N.Y. Feb. 22, 2005)
Posted by: Michael R. Levine | Jul 19, 2013 1:32:56 PM
The expectation for change is based on a basic belief, particularly notable in this society, of the potential of the human animal. This if often based on beliefs as to the "image of God," but is not only based on that. Rehabilitation in theory need not be a goal of punishment, but it is in this country. Even regarding those who are executed, there is some hope and effort made for the person to die in a better position than s/he was when they committed the crime.
I don't think it conclusively true that LWOP ends the "right to hope," since it is possible to hope inside a prison -- this sounds like a sick joke, I know, but it has shown to be true in various cases, and some European countries more so given their methods. You can "atone" and still realize as well that it might be unsafe to let you go or as a whole good policy (especially if the alternative in execution) to keep you in prison.
Consider someone who is sentenced to house arrest after a certain period of time. Will their humanity be lost in the process?
Posted by: Joe | Jul 19, 2013 2:08:12 PM