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April 23, 2011

Noting the links between DP abolition and LWOP sentences

This recent commentary from The Guardian provides an effective and troublesome reminder of the too frequent link internationally between death penalty abolition and expansion of the sentence of life without parole.  The piece is headlined "Falling execution rates don't always mean a victory for human rights; In countries where capital punishment has been banned the alternative can be inhumane life imprisonment without parole."  Here are excerpts:

Amnesty International's recently published death penalty statistics hailed a "decade of progress".  For opponents of capital punishment, this annual tradition of significant documented falls in executions is a victory -- of sorts.  As Amnesty reported, of the 67 countries that handed down death sentences in 2010, only 23 actually carried out executions.  These statistics, however, do not tell us this: what happened to the prisoners who escaped state execution in the remaining 44?

Very little attention is given to the sanctions that should replace capital punishment, or to what happens after it is abolished.  Consider Uganda.  A landmark legal challenge in 2009 abolished mandatory death sentences for certain crimes.  But the Ugandan criminal justice system was unprepared for the change.  Under pressure from politicians facing a backlash from a public highly supportive of capital punishment, and in the absence of any new sentencing guidelines, judges handed down draconian prison sentences instead -- including life without parole, previously nonexistent in Uganda.

The attraction of life without parole, now the commonest alternative to capital punishment, is understandable.  It allows governments to claim they are protecting the public by permanently removing serious offenders from society.  It appeases public outcry at the early release of dangerous convicts on parole.  And it means abolitionists can show they are not soft on crime, while at the same time eliminating the danger of executing innocent people.  But life without parole trades one severe punishment for another: execution is swapped for a protracted, hopeless death in unspeakable conditions.  HIV rates in Ugandan prisons are more than double the rest of the population.  In Malawi, where no one has been executed since 1992, prisons are vastly overcrowded and rife with infectious disease; prisoners are denied contact with families, and sexual and psychological abuse by inmates and guards is routine.

Across the world today, those lucky souls who escape death by hanging, beheading, electrocution, lethal injection, shooting or stoning live out their lives in conditions tantamount to a breach of international prohibitions of cruel and inhuman punishment, as an emerging jurisprudence recognises.  Whole life imprisonment can also be a form of legal disappearance.  In 2009, after Kenya's last elections, some 4,000 prisoners had their sentences commuted to life to without parole by President Kibaki.  Some of those prisoners -- living in some of the world's most crowded and worst funded prisons -- have not been heard from since, by their lawyers or families.  These are hardly arguments for retaining capital punishment.  But if a sentence of 75 years, with hard labour and without review or hope of release -- the current alternative in Trinidad and Tobago -- is considered a "victory", it is surely time to rethink our indices of success....

Few headlines focus on the aftermath [of a commuted death sentence], and few international advocates jet in to ensure that those released from death row are not tortured in prison, contract tuberculosis or HIV, lose contact with their families or die in appalling squalor.  Indeed, litigation can often cause unintended harm.  In the United States, as Peter Hodgkinson of the Centre for Capital Punishment Studies (one of few organisations raising this issue) has pointed out, a government backlash against death-penalty litigation has directly or indirectly led to an increase in the number of capital crimes, and to severe restrictions in the appeal process.

Life without parole cannot be the alternative.  Both the UN and Council of Europe guidelines on managing long-term prisoners recognise that very small numbers of convicted prisoners may have to stay in prison for their natural lives -- but only with regular reviews of their risk of reoffending....

The abolitionist campaign's goal should be a humane, proportionate and human rights-compliant response to perpetrators and victims of serious crime.  It might require global guidance to standardise the huge, and often grossly disproportionate range of sentencing decisions.  It will certainly require building and sustaining capacity among lawyers to challenge human rights abuses in prison, and training police and prison staff to cope in effective and positive ways with serious offenders.  It will also mean recognising that the high proportion of mentally ill prisoners on death row might be better dealt with in clinical rather than punitive settings....

A falling execution rate is not the only measure of rising humanity.  We cannot simply declare victory when capital punishment is removed from the statute book, or when fewer prisoners are executed.  Moving to a humane penal response to serious crime, in societies in which the death penalty has flourished for centuries, cannot be done at a stroke. The entire abolitionist project is undermined if wholesale infrastructural change is not addressed.  Too often, current alternatives to the death penalty raise the uncomfortable question: "what would you rather?"  Those that do not are not easy -- but silence does no justice to our cause.

April 23, 2011 at 06:47 PM | Permalink


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This is the problem with retribution. There is no end to the advocacy for the government job generating criminal. Eventually, it will end with taxpayer funded stay at the Ritz-Carlton with butlers around the clock to insure the mutual safety of the criminal and the public.

Incapacitation is the sole mature goal of the criminal law. It does not involve fairness or moral argument. It just requires the ability to count to 123D, an ability of every lawyer. It just says, you make a nuisance of yourself enough times, and you are gone. It may send some murderers home, when incapacitation is not necessary. It hold all elements of criminal justice, especially judges, to standard of professional due care, and compensates the victims of judge carelessness.

Posted by: Supremacy Claus | Apr 23, 2011 7:29:50 PM

As Marc Shepherd and I have previously observed, as soon as the death penalty is abolished under the promise that "LWOP really does mean 'without parole'," those making that promise would move without delay to renege on it.

Posted by: Bill Otis | Apr 23, 2011 7:49:54 PM

The problem with punishment is...it doesn't work. However,
"Which of us does not admire what Lycurgus the Spartan did? A young citizen had put out his eye, and been handed over to him by the people to be punished at his own discretion. Lycurgus abstained from all vengeance, but on the contrary instructed and made a good man of him. Producing him in public in the theatre, he said to the astonished Spartans:—“I received this young man at your hands full of violence and wanton insolence; I restore him to you in his right mind and fit to serve his country.”
I suppose it depends upon what you ask of your citizens and justice system. For me the "Justice of Lycurgus" seems a better guide than either DP or LWOP. But then I may well be biased toward effectiveness as opposed to "feel good" solutions.

Posted by: Tim Rudisill | Apr 24, 2011 4:41:39 AM


That's actually not so far from what I proposed in my very first comment at SL&P: http://sentencing.typepad.com/sentencing_law_and_policy/2008/08/a-campaign-ques.html

Putting the offender into the specific care of someone in the community rather than the generalized care of the state. I do think putting the offender into the care of the victim is a bit much, unless we are talking chattel clavery as part of a sentence.

Posted by: Soronel Haetir | Apr 24, 2011 9:31:05 AM

I am sorry, to equate LWOP and death sentence as the same is silly. THe death penality may be wrong. However, there is NOTHING wrong with LWOP. LWOP is a necessary sentence for many crimes. Not only does it protect society from criminals, it also punishes criminals for severe crimes.
The day LWOP is abolished, you may as well give a free license to criminals to do what they want.

Posted by: Jim | Apr 25, 2011 8:17:23 AM

Perhaps the possibility of commuting the sentences/forbearing from prosecution and punishment for violent offenders, provided that they are released into the custody of Tim Rudisill and reside in his home, is worth a thought.

(Unless I misunderstand the point of Mr. Rudisill's post, and he is simply proposing that violent offenders who victimize *him* not be prosecuted but rather released into his personal custody.)

Posted by: guest | Apr 25, 2011 11:16:39 AM

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