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July 14, 2013

European Court of Human Rights finds UK use of LWOP sentences violated human rights convention

ECHRAs reported in this piece from The Guardian, last week brought a landmark ruling from the European Court of Human Rights.  The article's headlined provide the basics: "Whole-life jail terms without review breach human rights — European court; Three murderers, including Jeremy Bamber, have right to review of sentence, but ECHR judgment doesn't make release imminent."   Here is more about the ruling and early reaction thereto:

Whole-life jail sentences without any prospect of release amount to inhuman and degrading treatment of prisoners, the European court of human rights has ruled. The landmark judgment will set the ECHR on a fresh collision course with the UK government but does not mean that any of the applicants — the convicted murderers Jeremy Bamber, Peter Moore and Douglas Vinter — are likely to be released soon.

In its decision, the Strasbourg court said there had been a violation of article 3 of the European convention on human rights, which prohibits inhuman and degrading treatment. The judgment said: "For a life sentence to remain compatible with article 3 there had to be both a possibility of release and a possibility of review."

The court emphasised, however, that "the finding of a violation in the applicants' cases should not be understood as giving them any prospect of imminent release. Whether or not they should be released would depend, for example, on whether there were still legitimate penological grounds for their continued detention and whether they should continue to be detained on grounds of dangerousness. These questions were not in issue."

The appeal was brought by Vinter, who murdered a colleague in 1996 and after being released stabbed his wife in 2008; Bamber, now 51, who killed his parents, his sister Sheila Cafell and her two young children in 1985; and Moore, who killed four gay men for his sexual gratification in 1995.

The judges in the grand chamber at Strasbourg, the appeal court above the ECHR, found by a majority of 16 to one that there had been a violation of human rights....

Their decision means that the government will now be under pressure to introduce a formal review of whole-life sentences after 25 years. The current law governing release of life prisoners in England and Wales was unclear, the judges said. Those on a whole-life term can be freed only by the justice secretary, who can give discretion on compassionate grounds when the prisoner is terminally ill or seriously incapacitated....

In its judgment, the grand chamber said: "The need for independent judges to determine whether a whole-life order may be imposed is quite separate from the need for such whole-life orders to be reviewed at a later stage so as to ensure that they remain justified on legitimate penological grounds."...

The new British judge on the court, Paul Mahoney, pointed out in his comments that the UK government was "of course free to choose the means whereby they will fulfil their international treaty obligation" to abide by the judgment....

During the original hearing in Strasbourg, Pete Weatherby QC, who represented the three claimants, told the court: "The imposition of a whole-life sentence crushes human dignity from the outset, as it removes any chance and therefore any hope of release in the future.  The individual is left in a position of hopelessness whereby he cannot progress whatever occurs."

Commenting on the decision, Rebecca Niblock, a criminal law solicitor at Kingsley Napley LLP, said: "No doubt there will be renewed calls to pull out of the European convention on human rights and repeal the Human Rights Act.  Yet Theresa May would do well to keep a sense of proportion: a right to have the sentence reviewed is quite different from a right to be released, and the number of prisoners affected is tiny — 49."

"England and Wales lag behind other European countries in the use of the whole-life sentence — the only other EU country which uses it is Holland.  The repeated calls to withdraw from the European convention carry a huge risk of undermining the UK's reputation abroad.  There is only so much the UK can say to other countries about their human rights records when they show disdain for judgments which go against them at Strasbourg."

I am unsure about how ECHR rulings impact domestic laws and procedures either in the nation brought before the ECHR or other nations who have adopted the applicable convention.   But I am sure, as evidenced by local press stories and commentaries here and here and elsewhere, that this ruling is not being celebrated within the UK.  Further, because the decision in Case of Vinter and Others v. the United Kingdom  (available via this link) is long and full of nuance, its actual impact may end up somewhat more muted than might be predicted or feared.

That all said, this ruling to me serves as another important reminder that lots of judges when given an opportunity to consider human rights rather than just politics ultimately conclude that a true LWOP sentence is a horrific punishment even for the most horrific of crimes.  The US Supreme Court rulings in Graham and Miller, though far more limited and far more divided that this ECHR ruling in Vinter, are in the same vein.  And I suspect over time other courts in various other settings will come to similar rulings about true LWOP sentences.

July 14, 2013 at 03:06 PM | Permalink


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I don't see why a sovereign state shouldn't be left to balance itself weigh the different penological goals and decide that, in some cases, retribution would be the main purpose.

Moreover, I don't see how locking some killers up and losing the key is a inhuman and degrading treatment and why Britain should be forced to allow some meaningful opportunity of release to a serial killer, someone who exterminated his own family for some buck and a repeat murderer for a clause which originally (ie. 1950) refered to torture, enslavement, concentration camps, gulags, making people do some minesweeping whipped and starved or using them for vivisecion.

Posted by: visitor | Jul 14, 2013 4:28:45 PM

As you might expect, I entirely disagree with the opinion expressed by "visitor", and would also caution against reading too much into the comments and headlines that Professor Berman has observed from elements of the UK media. Politics is alive and well in the UK just as in the US, and many, unfortunately, just love kicking any rulings from the EU. However, when the UK responds to implement the ruling, things will simply be returning to the position of only a few years ago. Review = hope = motivation = health = humanity. The day we lose our humanity is the day we deny a future for mankind. Review does not guarantee release, but it does offer the hope of objective justice.

Posted by: peter | Jul 15, 2013 4:00:07 AM

As a forensic mental health specialist, and agree that a life sentence without the possibility of parole is absolutely inhumane. Reading recently that there are inmates hunger striking in the US who have not touched another human hand in 13 years highlights the chronic inhumanity which offenders are forced to endure. It is not about reducing a punishment for offenders, whatever the charge - the loss of liberty for years, potentially decades, is not a gift - but about extending the hand of humanity which we cannot lose in the name of justice.

Posted by: Judy | Jul 15, 2013 7:37:36 AM

Hi Judy,

Do you volunteer yourself or your children to cuddle with these butchers or is it only OK if you are safe and they are dumped into someone else's neighborhood? What an excellent example of the NIMBY mentality.

It is easy to be "humane" when someone else has to take the chance.

You stated: "It is not about reducing a punishment for offenders, whatever the charge - the loss of liberty for years, potentially decades, is not a gift -...

OF COURSE it is about reducing punishment. Will your definition of "humanity" EVER result in MORE prison time for a butcher? No, it is always LESS that is sought to meet your own personal definition of what is "humane."

You stated: "but about extending the hand of humanity which we cannot lose in the name of justice."

Humanity includes giving inmates, even butchers, relatively safe, clean, and stimulating environments (a place to exercise, a library, an occasional movie, etc.), not a ticket to walk free and repeat their butchery if they see fit to do so. That is an injustice, although I doubt you care about that...

Posted by: TarlsQtr1 | Jul 15, 2013 9:13:34 AM

The main point of interest about this thread is that it gives credence to those who've been saying the demand for LWOP as an alternative to capital punishment was a bait-and-switch ploy from the getgo. Only now will we see peeking into view the true (if heretofore concealed) agenda: No DP and no LWOP either. A prison term to be announced as lengthy ab initio, but -- after the lights get turned off and interest fades -- to be sliced and diced.

Not that this should be surprising. Those who never believed in punishment to start with don't believe in it now. This is new? They start us down the path they want by singing an anthem ("We'll assure iron-clad LWOP!") they never believed, but that they knew was their best hope for lulling the public into going along.

Once the public has swallowed, the real belief shows up: Punishment -- any punishment -- is just, so, well, mean-spirited. It's time for, ummmmm, hope! That's it, hope!!!

And if he does it again post-release, hey, well, look...............quit being so nasty. Give peace a chance!

Posted by: Bill Otis | Jul 15, 2013 9:58:48 AM

The author of the OP has spoken of his sympathy with giving those with LWOP sentences the right to end their lives, so can see if he has sympathy with the ruling.

OTOH, I am not sure how many "never believed in punishment," even if they think LWOP is inhumane as a whole. I also don't really see that as necessary regarding a ruling that says "any prospect of release" the very least required. For instance, this would mean a seventy five year old might have a chance to be released, particularly if he or she is seriously ill and bedridden.

We have seen that "review" is not the same as "win" for any number of people, including habeas review. The "review" Charles Manson might have every so often doesn't mean the chance of him getting out is increasing significantly.

LWOP also is not only applied to murderers. Finally, whatever the idea position of a person like peter or me, the overall anti-death penalty position remains treating LWOP and execution separately. Actuality results in certain rankings. Legalization of marijuana does not mandate the sale of heroin in vending machines. Even if some small subset of the legalization group supports that.

Posted by: Joe | Jul 15, 2013 12:03:36 PM

Joe --

"I am not sure how many 'never believed in punishment,' even if they think LWOP is inhumane as a whole."

I'm not sure either, but the fact remains that an article like this is indisputable evidence that a significant number of those pushing for the end of the DP have no intention whatever of stopping there. It would be more honest if they made this fact more public, instead of telling us that iron-clad LWOP will be the order of the day in a post-DP world.

"For instance, this would mean a seventy five year old might have a chance to be released, particularly if he or she is seriously ill and bedridden."

Yup, they'll start with the 75 year-old invalid, just as the drug legalization lobby starts with dope, not heroin. But the internal logic and engine of the anti-LWOP forces will inevitably seek prison releases of 65 year-old's, then 55 year-old's, then.........well, you get the picture.

A fascistic, malevolent, punitive society needs to be put in its place. The Enlightened who think this way are easily shrewd enough to know they can't do it all in one fell swoop. Thus the genius of incrementalism, which is what the article is all about.

"Finally, whatever the idea position of a person like peter or me, the overall anti-death penalty position remains treating LWOP and execution separately."

I agree. They aim to abolish the DP separately, then abolish LWOP separately, then abolish anything over 20 years separately. Believe me, I get the picture. I have said the release-them-now crowd is wrong. I never said they were stupid.

"Legalization of marijuana does not mandate the sale of heroin in vending machines."

No, it doesn't, but it sends a signal suggesting the harmlessness and social approval of drugs that legalizers full well know (and intend) will make the legalization of heroin easier and quicker. It also provides an early victory to energize the troops and assist in fundraising.

Posted by: Bill Otis | Jul 15, 2013 1:39:31 PM

...I doubt you care about that...TarlsQtr1

...quit being so nasty. Give peace a chance! Bill Otis

talk about nasty, you two really should find a professional mental health specialist to help you work through your anger issues...or better yet take an anger management class for christsakes and stop trying to denigrate everyone elses opinions

Posted by: Visitor 2 | Jul 15, 2013 4:11:00 PM

Visitor 2 --

When the bait-and-switch crowd supports supposedly iron-clad LWOP as an inducement to end the death penalty, but then turns around to ready the attack on the very LWOP they so solemnly promised -- then, you bet, I'm going to satirize them.

That's for starters.

If there's some reason I shouldn't, you're welcome to explain what it is. Thus far all I know is that you don't like me or TarlsQtr (although I thank you for putting me in good company).

Posted by: Bill Otis | Jul 15, 2013 4:38:54 PM

Well bill while i agree certain crimes call for life period. the govt can't really complain about others using "bait and switch" tactics. After all they learned them from the govt own action. They have been using the same in sex crimes law for decades now!

Posted by: rodsmith | Jul 16, 2013 11:55:01 AM

Visitor 2,

Do you have anything of substance to say about my post?

Is it not true that the butchers you want put back on the streets will probably be living in a neighborhood that is not yours?

Is it not true that your definition of "humanity" always results in a shorter sentence and never a longer one even though you said it is NOT about "reducing a punishment?"

Is it not true that the traditional definition of "humane treatment" as it applies to inmates is that they are given clean, safe, and stimulating environments, to the extent that they can be while still maintaining security?

You stated: "you two really should find a professional mental health specialist to help you work through your anger issues...or better yet take an anger management class for christsakes and stop trying to denigrate everyone elses opinions"

I have long said that there is no one less self-aware than a liberal. This goes beyond ANYTHING I said in my post that could be construed as "angry" or "trying to denigrate everyone elses (sic) opinions" by a factor of 5.

In the end, it comes down to faux outrage on your part about HOW I said something because you had no answer for WHAT I said.

You people have always been predictable.

PS Any day that I can be lumped into the same group as Bill Otis is a good one.

Posted by: TarlsQtr1 | Jul 16, 2013 12:30:41 PM

Bill Otis,

The legalization of heroin does not necessarily or even likely follow from the legalization of marijuana, just as the legalization of marijuana has not followed from the legalization of alcohol.

In any event, the legalization of marijuana, like gay marriage, is inevitable. Just today i read the following on Politico:

'SAN FRANCISCO -- A new survey released Tuesday reveals that a majority of American parents support medical marijuana legalization, and nearly half support legalization for recreational use.

Perhaps more surprising is the unexpected author of the study: The Partnership at Drugfree.org, one of the harshest critics of drug use in the nation.

In the survey, titled "Marijuana: It's Legal, Now What?" the Partnership addresses the growing acceptance of marijuana in the country.

"With marijuana now legal for recreational use in Colorado and Washington State, for medical use in 18 states and the District of Columbia, and effectively decriminalized in 14 states, it's clear that society's approach to marijuana is changing dramatically," the authors wrote.

Seventy percent of respondents said they favor medical marijuana legalization, 52 percent favor marijuana decriminalization and 42 percent favor legalization for recreational use. The Partnership interviewed 1,603 adults, 1,200 of whom were parents of children ages 10 to 19."

Posted by: Dave from Nevada | Jul 17, 2013 3:40:15 PM

LOL that's a good one dave. they talked to 1,603 adults out of what 350,000,000 people and think they have a representative group?

that's funny!

that's right up there the the 1994 sex offender reoffence study the govt has been throwing in everyone's face when they try and fight the illegal sex offender registry problem.

You know that they have to do it because based on that study sex offenders have a 100% reoffence rate.

They never look at the details!

The govt fuctard who did the study used about 200 inmates in a eastern state prison who were there becasue of multiple offences. NO SHIT they had a high reoffence rate!

Posted by: rodsmith | Jul 24, 2013 10:00:20 PM

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