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Abstract
This article advances a censure-based case against sentences of life imprisonment without the possibility of parole. Our argument justifies a retributive “second look” assessment of long-term prison sentences. The article focuses on the censuring element of long-term prison sentences while reconceptualizing penal censure as a dynamic and responsive concept. By doing so, the article explores the significance of the prisoner’s life after sentencing (largely ignored by retributivists) and promotes a more nuanced approach to censure-based proportionality. Policy-makers may welcome this approach as a way to control excessive prison sentences while remaining within a retributive penal framework. Although we are making a general argument about the need for responsive censure within a retributive sentencing regime, the case for this approach is particularly compelling at the present time. Almost all Western nations, and particularly the US, impose very lengthy, often life sentences of imprisonment for a wide range of offences, thereby affecting large numbers of prisoners.
Notes
[Disclosure Statement: No potential conflict of interest was reported by the authors.]
1 See Berry, “More Different than Life,” 1127. In Europe, however, such punishments are rare. As Craig S. Lerner notes, “[t]he only European nations that appear to impose sentences that approximate LWOP … are the Netherlands (37 inmates), England and Wales (36 inmates), and France (3 inmates).” “Life without Parole,” 1113–14.
2 See Robinson, “Life without Parole,” 138.
3 See Henry, “Death in Prison Sentences,” 66; Lerner, “Life without Parole,” 792. The American Civil Liberties Union states that “as of 2012, there were 3278 prisoners serving LWOP for nonviolent drug and property crimes in the federal system and in nine states that provided such statistics.” “A Living Death,” 2.
4 See Hamilton, “Life Sentences,” 835.
5 See ACLU, “A Living Death,” 20–21.
6 See Cochrane, “Prison on Appeal,” 309.
7 Appleton, Life without Parole, 2 (emphasis in the original).
8 Norris v Morgan, 622 F.3d 1276, 1291 (9th Cir. 2010).
9 See Blecker, “Prison without Parole,” 12.
10 Ibid.
11 See Henry, “Death in Prison Sentences,” 66.
12 Appleton and Grøver, “Pros and Cons of Life,” 605. For an English example see Lord Bingham in R v Hindley [1998] QB 751, 769: “I can see no reason, in principle, why a crime or crimes, if sufficiently heinous, should not be regarded as deserving life-long incarceration for purposes of pure punishment.”
13 O’Hear, “Life without Parole,” 5; see also Appleton and Grøver, “Pros and Cons of Life”; Appleton, Life without Parole.
14 James Q. Whitman argues that “to the extent retributivist philosophers are heard at all, they are heard in ways tantamount to pouring gasoline on the fires of American punishment.” “Retributivism,” 94. However, retributive theorists often emphasise that adherence to the principle of proportionality serves as a restraint against excessive punishment. See von Hirsch, Deserved Criminal Sanctions; Duff, Punishment, Communication and Community; Ashworth, “Prisons.”
15 Berry, “More Different than Life,” 1136.
16 See Miller v Alabama, 132 S. Ct 2455 (2012).
17 Robinson, “Life without Parole,” 156.
18 Ashworth, “Prisons,” 483.
19 See von Hirsch and Hanrahan, The Question of Parole.
20 Retributive scholarship dedicated considerable effort to reduce punitive excessiveness through “front-end” sentencing decisions while emphasising the need for moderate levels of punishment. See Frase, “Excessive Prison Sentences”; von Hirsch, Deserved Criminal Sanctions. Retributivists also suggest a moderate level of imprisonment for most of the offences comparable to the American sentencing levels. For example, Duff regards five years’ of imprisonment as too severe ever to act as a mere “prudential disincentive” even for attempted murder; Ashworth argue that a sentence of more than one year’s imprisonment for theft from a shop would “drown out” the law’s moral message. See Ashworth, “Prisons,” 483; von Hirsch, Censure and Sanctions, chapters 5 & 10. However, as Michael O’Hear argues, the retributivists’ failure to bring penal restraint may be related to “their orientation toward ‘front end’ aspects of the criminal justice system.” “Beyond Rehabilitation,” 1286.
21 See von Hirsch, Doing Justice, 79; Duff, Punishment, Communication, and Community, 135.
22 See von Hirsch, Past or Future Crimes, 64.
23 See United States v Griffin, 7 F.3d 1512 (10th Cir. 1993).
24 ACLU, “A Living Death,” 54.
25 Ibid., 55.
26 See van Zyl Smit, Weatherby, and Creighton, “Life Sentences,” 65.
27 See von Hirsch, Censure and Sanctions; von Hirsch and Hanrahan, The Question of Parole.
28 Richard Singer claims for example that “to retain parole in any form would prima facie be anathema to a commensurate deserts model.” Just Desert, 111–12. Retributive opposition to parole was a primary factor in the elimination or restriction of parole across the United States, Canada, and England and Wales.
29 See von Hirsch and Hanrahan, The Question of Parole, 29.
30 Ibid.; see also Bierschbach, “Proportionality and Parole,” 1759; Reitz, “Reporter’s Study,” 121.
31 von Hirsch and Hanrahan, The Question of Parole, 29–30.
32 The one exception to this rule offered by these authors is curious. They argue that if societal attitudes to the offender’s crime change, the prison sentence should be curtailed to reflect the current normative attitude toward the offender’s crime. This means that a prisoner must live in hope of a positive change in social attitudes as the only way to secure early release and removes from him or her any ability to modify his or her sentence. “Such a procedure might have the advantage of allowing the case to be considered in a calmer atmosphere, when it has lost some of its notoriety and a more detached assessment of the crime can be made,” von Hirsch and Hanrahan suggest. The Question of Parole, 29–30.
33 Static approach to censure is clearly at odds with judicial practice and also with responses to wrongdoing in everyday life. In both of these very different contexts the censuring authority is responsive to the actions of the “offender,” and not simply at the point of first confrontation over the “offence”. In everyday life, what kind of a person expresses condemnation, imposes punishment, and is ever thereafter oblivious to the reaction of the transgressor?
34 von Hirsch and Hanrahan, The Question of Parole, 17.
35 Ibid., 17–18.
36 See Dye et al., “Religious Engagement,” 389.
37 See Schinkel, “Punishment as Moral Communication.” See also Cochrane, “Prison on Appeal,” 305–6.
38 See Ashworth and von Hirsch, Proportionate Sentencing.
39 See Duff, Punishment, Communication, and Community; Duff et al. note that “calling to account is a two-way process.” “Judgment and Calling to Account,” 6.
40 Duff, Punishment, Communication, and Community, 79.
41 See ibid., 28–29 and 118–19; Duff, “Innocent,” 190.
42 See Maslen, Remorse, 102, 145.
43 See Roberts and Maslen, “Retributivism,” 103.
44 As von Hirsch puts it, “[o]ne visits censure or reproof on people, not acts.” Doing Justice, 82.
45 The American Supreme Court has explicitly rejected such an “irrevocable judgment” about the offender in Graham v Florida, 130 S. Ct. 2011, 2027 (2010), while holding that a sentence of LWOP for juvenile non-homicide offenders is unconstitutional.
46 Duff, “Innocent,” 190; see also Duff, Punishment, Communication, and Community, 118–19.
47 Duff, “Penal Communications,” 33 (emphasis added).
48 This suggests that penal cultures affect the sentencing model; the need for sentence reviews becomes particularly pressing in sentencing regimes that impose harsh and lengthy sentences.
49 Schinkel, “Punishment as Moral Communication,” 592.
50 See Pillsbury, “Learning from Forgiveness,” 148.
51 Model Penal Code, s. 305.7, 99. Such humanitarian considerations are related to post-sentencing change in the subjective experience of the prisoner’s suffering. See Kolber, “The Subjective Experience,” 182.
52 The Model Penal Code’s comments note that “[t]he passage of many years can call forward every dimension of a criminal sentence for possible re-evaluation. On proportionality grounds, societal assessments of offense gravity and offender blameworthiness sometimes shift over the course of a generation or comparable periods” (79–80).
53 Sliva, “Meaning of Life,” 512.
54 See Crewe, Hulley, and Wright, “Swimming with the Tide,” 521.
55 Leigey, “Life without Parole,” 261.
56 See Vannier, “Life,” 340.
57 See Robbins, “Resurrection,” 1164; Bierschbach, “Proportionality and Parole,” 1759; For character arguments within an early-release context see Graham v Florida 560 U.S. 48 (2010) (USSC).
58 Forms of late sentence reviews exist in some US jurisdictions. See Reitz, “Indeterminate Sentencing Model”; Reitz, “Reporter’s Study,” 94–95. The Model Penal Code, s. 305.6 includes a provision for “sentence modification” after serving fifteen years of a long prison sentence.
59 Leigey, The Forgotten Men, 24.
60 Ibid.
61 See Kazemian and Travis, “Long Termers,” 378; Lora Lempert, Women Doing Life, 139–40.
62 See Van Ness, “Prisons and Restorative Justice,” 312.
63 See Roberts, “Crime Victim,” 347.
64 See Roberts and Maslen, “Retributivism”; Maslen, Remorse.
65 Kazemian and Travis, “Long Termers”, 378.
66 Crewe, Hulley, and Wright, “Swimming with the Tide,” 529.
67 “Those who were beyond the early sentence phase,” Crewe, Hulley, and Wright write, “reproached themselves morally and engaged in forms of profound existential reflection about what it meant to take someone else’s life. Most strained to communicate the profound impact of such an act on their sense of self.” Ibid., 530.
68 See ibid.
69 See Strang and Sherman, “Victims and Restorative Justice,” 18.
70 See ibid., 20–25.
71 See Lippke, “Retribution and Incarceration,” 44–45.
72 See European Prison Rules, Art. 102.2 (2006): “Imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime shall not aggravate the suffering inherent in imprisonment.” See also van Zyl Smit and Snacken, Principles, 73.
73 California Code of Regulations § 2402(d)(3).
74 See Reitz, “Indeterminate Sentencing Model,” 278.
75 California Code of Regulations § 2402(a) (emphasis added).
76 California Code of Regulations § 2402(d).
77 Joel Caplan nots that “a detailed review of the empirical literature on parole release decision-making suggests that despite guidelines, parole release decisions … were primarily a function of institutional behaviour, crime severity, criminal history, incarceration length, mental illness, and victim input.”. “Parole,” 16.
78 See O’Hear, “Beyond Rehabilitation.”
79 In some US states, release eligibility in some cases is set immediately upon admission to prison with no minimum stay other than determined by the parole board. See Reitz, “Indeterminate Sentencing Model,” 275.
80 S. 305.6(2) of the Model Penal Code offers that “[a]fter first eligibility, a prisoner’s right to apply for sentence modification shall recur at intervals not to exceed 10 years.”
81 See Rhine, Petersilia, and Reitz, “Parole Release”; Model Penal Code.
82 However, offenders committing crimes for which compensation is impossible are assuming this consequence when they commit the crime.
83 For a similar proposal see Bell, “Parole.”
84 In some jurisdictions the paroling authority is chaired by a judge, while in others the sentencing court can review the sentence later. See the Model Penal Code’s comments, 82.