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Debating Life

SINCE THE ENLIGHTENMENT at the end of the eighteenth century, the fundamental justice of imposing certain harsh forms of punishment—in particular the death penalty—has been the subject of intensive debate. Nevertheless, ever since then, mainstream penology has generally accepted that fixed-term imprisonment can be imposed and implemented fairly enough to be an acceptable and proportionate form of punishment. The notion of “a just measure of pain”1 united utilitarian and retributive theorists of punishment, as it united also the ideals of those who imposed sentences of imprisonment and those who carried them out.
Did this approach, with its implicit commitment to proportionate punishment, apply to life imprisonment too? If so, does it still apply? In other words, is it acceptable to impose sentences that deliberately give the state the power to detain convicted offenders in prison until they die there? And can such sentences be implemented justly?
In this chapter we introduce the key debates about the justness of life imprisonment in two related ways, which are designed to provide a framework for the analysis of life imprisonment as it manifests itself worldwide. First, we look briefly at the key justifications for punishment that were put forward for life imprisonment, particularly by criminal justice specialists, as life sentences emerged as a separate form of punishment from the eighteenth century onward.
Second, we focus on the human rights principles that, since the mid-twentieth century, have become increasingly important tools for evaluating the implementation of all forms of punishment against wider standards than those that have long been part of debates within criminal justice. In this regard, we pay particular attention to the human rights–based move away from the death penalty. We note that since the last decade of the twentieth century, the anti-death-penalty movement has led to a renewed emphasis on life imprisonment in jurisdictions where previously it had played little or no role. At the same time, we show how it has also led to life imprisonment increasingly being subject to human rights–based challenges that go beyond the critique of it that is advanced from within a purely criminal justice–based approach.

Historical Justifications for Life Imprisonment

Libraries of books have been written about theories of punishment generally. Our modest aim here is simply to introduce the justifications for life imprisonment in terms of the recognized theories of punishment that have emerged from the eighteenth-century Enlightenment onward, in order to reflect in subsequent chapters on what continuing purchase they have on modern life imprisonment. The justifications include both those based squarely in theories of punishment—deterrence, retributivism, and rehabilitation—and concerns about incapacitation and incorrigibility, which are justified in terms of wider social policies.

Deterrence

The notion that punishment should be measured and spelled out clearly, so that the potential offender could know the punishment in advance and could be deterred by it, is usually associated with the work of the eighteenth-century Italian philosopher Cesare Beccaria.2 But Beccaria also emphasized that, to be just, a punishment ought not to be unnecessarily severe. It should not exceed the degree of intensity that will deter others from crime. Similarly, Enlightenment prison reformers, such as John Howard, were opposed to random cruelty.3 They demanded that the prisons where the newly prominent prison terms would be served should be regulated by law, which would clearly spell out in advance the rules governing the deterrent regimes they would follow: the implementation of prison sentences had to be firm but fair to achieve its deterrent objectives precisely.
Famously, Beccaria not only wanted to introduce determinate sentences of imprisonment with clear terms set for closely defined offenses but was also opposed to the death penalty as an unnecessary form of cruelty in a well-ordered society. He has remained a hero of death-penalty abolitionists ever since. However, one is immediately struck by the paradox that Beccaria’s approach to life imprisonment is very different from that which he adopted toward other forms of imprisonment including, crucially, capital punishment. In an oft-cited passage in support of “perpetual penal servitude” as a viable alternative to the death penalty, Beccaria commented that
there is no one who, upon reflection, would choose the total and permanent loss of his own liberty, no matter how advantageous a crime might be: therefore, the intensity of perpetual penal servitude, substituted for the death penalty, has all that is necessary to deter even the most determined mind. Indeed, I would say that it has even more: a great many men look upon death with a calm and steady gaze, some out of fanaticism, some out of vanity.… But neither fanaticism nor vanity survives in fetters or chains, under cudgel and the yoke, or in an iron cage, where the desperate man finds that his woes are beginning rather than ending.4
Beccaria’s opposition to the death penalty but support for life imprisonment was based not on his professed disavowal of the cruelty of capital punishment but on his concern with the maintenance of order.5 From his perspective, executing murderers would stimulate cruelty among the public, while life imprisonment would make more of an impact as the public would see those subject to the perpetual slavery of a life sentence, and it would therefore be a more effective deterrent.6 Other early utilitarians reasoned in the same way. Thus Jeremy Bentham remarked in 1841 that “the contemplation of perpetual imprisonment, accompanied with hard labour and occasional solitary confinement, would produce a deeper impression on the minds of persons in whom it is more eminently desirable that the impression should be produced, than even death itself.”7
Properly understood and enforced, a life-sentence regime for both Beccaria and Bentham should be so harsh that it renders death a mercy. The historical consequence of Beccaria’s ideas has been described by Thorsten Sellin, who noted that his “advocacy of penal slavery encouraged [in Austria, Hungary and elsewhere] the invention of horrid forms of imprisonment believed to be more deterrent than death.”8 Many rulers at the time, such as Catherine the Great of Russia and Maria Theresa of Austria, evinced real interest in Beccaria’s ideas on life imprisonment and several attempts were made to implement them. Many individuals were thus saved from an immediate execution, but instead were subject to such a harsh form of life imprisonment that their incarceration ended only in early death.9 In the United States, too, Beccaria’s writings influenced debate on life imprisonment in the early eighteenth century and its increasing use in the early nineteenth century.10
An important empirical question for this book is the extent to which the utilitarians’ bleak vision of life imprisonment and its impact still holds true. A key part of the utilitarian vision of life imprisonment as a deterrent was of life sentences being carried out in full. As we demonstrate in Chapter 3, life sentences from which there is, in law and in fact, no, or almost no, prospect of release continue to play a prominent part in life imprisonment worldwide. Similarly, Chapter 7 shows that the dire prison conditions that Beccaria saw as the norm for persons serving life sentences still exist in many parts of the world. In some jurisdictions, life prisoners are deliberately treated more harshly than prisoners serving fixed terms, arguably to ensure that life sentences are sufficiently dreadful to deter those who contemplate committing the serious crimes for which they are usually imposed.

Retributivism

Retributivism, in the sense that the punishment should fit the crime, has been a staple of penal theory for many centuries. A more nuanced version, that a term of imprisonment could be a fair punishment when imposed in the right proportion to the seriousness of the offense, is fundamental to the Enlightenment penal theory that emerged from the mid-eighteenth century onward. The ideal of proportionate punishment was not limited to the utilitarian objectives associated with Beccaria. It was shared by supporters of deterrence and retribution. It was also reflected in the ideals of those who imposed sentences of imprisonment and those who implemented them with carefully calculated disciplinary harshness.
Life imprisonment was seen not only as a deterrent sentence but also as a retributive punishment that, particularly if implemented harshly and fully, had sufficient penal bite to make it proportionate to the most serious crimes. For example, in a speech in Parliament in 1868, the English liberal, John Stuart Mill, like Beccaria and Bentham before him, compared the death penalty with life in prison and argued that the former was less cruel:
What comparison can there really be, in point of severity between consigning a man to the short pang of a rapid death, and immuring him in a living tomb, there to linger out what may be a long life in the hardest and most monotonous toil, without any of its alleviation or rewards—debarred from all pleasant sights and sounds, and cut off from all earthly hope, except a slight mitigation of bodily restraint, or a small improvement in diet?11
Mill, went on to argue that “it is not human life only, not human life as such that ought to be sacred to us, but human feelings. The capacity of suffering is what we should cause to be respected, not the mere capacity of existing.”12
Similarly severe criticisms of life imprisonment were compellingly articulated by Mill’s younger contemporary, the British Quaker William Tallack. He noted that few abolitionists “have taken the trouble to make themselves acquainted with the extreme practical difficulties attendant upon the provision of an effectual substitute for that [death] penalty.”13 He highlighted the unmitigated despair and despondency of the prisoner committed for life and commented, “Almost the only possible justification for the horrors of life imprisonment, is that it has been regarded as constituting a substitute for Capital Punishment, which many persons consider to be a still greater evil.”14 According to Tallack, the death penalty “may be mercy itself, compared with the prolonged injury inflicted upon the spiritual and mental powers, extended over many years” under life imprisonment.15
There is evidence that some early retributivists were uncomfortable with both the death penalty and life imprisonment, as opposed to fixed-term sentences that could be more easily scaled so that the punishment (the period of the loss of liberty) fitted the severity of the crime. An early example of this unease was reflected in the French Penal Code of 1791. In the form in which it was originally proposed, it would have eliminated both the death penalty and life imprisonment, replacing them by fixed terms of imprisonment for specific offenses. Such sentences would have had to be imposed as legislated, with no judicial discretion to sentence within a range. The statutorily determined fixed terms with no prospect of early release were a way of limiting the power of both the judiciary and the executive. However, the code was not adopted in the form in which it was proposed. In its final form, it included the death penalty and not life imprisonment, but the idea of proportionality as a means of limiting excessive punishments lived on in the fact that the maximum term of imprisonment was twenty-four years.16
A similar line of thinking can be found in the writings of the late-eighteenth-century American penal reformer Benjamin Rush. In a pamphlet in 1792, he not only opposed capital punishment for murder (and other crimes), but also argued that all prison sentences imposed instead of the death penalty should be based on a fixed scale of years. He proposed that the length of such fixed-term sentences and the conditions under which they should be served should be proportionate to the seriousness of the offense.17
In neither France nor the United States, however, was life imprisonment effectively excluded for long from the palette of punishments. In 1810, a life sentence was added by the Napoleonic French Penal Code, which described it, in terms similar to those of Beccaria, as hard labor in perpetuity.18 There is also historical evidence that the states that constituted the fledgling United States used life imprisonment regularly in the first decades after independence.19 At that time, to a large extent, both death sentences and life imprisonment were simply seen as severe but deserved punishments, proportionate to the seriousness of the crimes for which they were imposed. Indeed, early nineteenth-century US commentators remarked critically that life sentences were being undermined because corrupt practices allowed life-sentenced prisoners to serve less than their deserved penalties.20

Incapacitation

Punishment that removes offenders from society is sometimes justified simply on the basis that it incapacitates them, thus protecting society from the crimes that they could otherwise commit as they are permanently excluded from normal society. Of course, the death penalty has the same result. However, as concerns about the death penalty’s proportionality for crimes other than homicide mounted, and as the public clamor against the imposition of capital punishment on certain classes of offenders grew, life imprisonment became a less controversial alternative. It was seen as a means of expelling those for whom the death penalty might be regarded as a disproportionately severe retributive response for the crimes, but still resulted ...