Whole life tariff: the death penalty by a drawn-out method?


On 9th July 2013, the upper chamber of the European Court of Human Rights found in favour of the appellants, much to renewed consternation on the part of the Prime Minister, the Justice Secretary, and sundry parts of the populist press. For my part, I am pleased that the ECHR has come down on the side of humanity, and in recognition of the possibility of change and redemption.

This is not, and never was, about deciding that these individuals, or other “whole-lifers” should imminently, or indeed ever, be released. It is about whether or not their cases should always be open to review. The judges have agreed that not allowing review at all, as a matter of policy and principle, amounts to “degrading and inhuman treatment.” In reaching that conclusion, they are absolutely correct.

Three of Britain’s “most dangerous criminals” have lost their application to the European Court of Human Rights to outlaw whole life tariffs on the grounds that they constitute “inhuman or degrading treatment”. When one looks at the nature of their convictions, it’s perhaps tempting to mutter, “Thank God for that”. And if you were one of those most affected by their victims’ deaths (since they are all convicted murderers) I imagine that the temptation would be almost irresistible. Certainly it wouldn’t be for those of us unconnected with the events to point the finger of disapprobation if indeed the temptation were not resisted.

But for all that, I am against the death penalty – as I’ve had cause to affirm before in these posts. I was therefore particularly struck by one of the appellants’ comments: “If the state wishes to have a death penalty, then they should be honest and re-introduce hanging. Instead, this political decision that I must die in jail is the death penalty using old age or infirmity as the method.” This, it seems to me, is a powerful and disturbing argument.

The key issue in all this is not in my judgement the fact that a whole life sentence might indeed be served, and that someone might die in jail. The issue here is the idea of a whole life tariff – which means that a decision is being made at a particular point in time that an individual shall indeed die in prison, no matter how long in the future that might be. More than that, it’s the reasoning behind the decision that disturbs me, and which I think is mistaken. In responding to the European Court’s decision, a Ministry of Justice spokesman said that “we argued vigorously that there are certain prisoners whose crimes are so appalling that they should never become eligible for parole.” In other words, it’s the nature of the crime, not the future state of mind or soul of the prisoner, which is determining. By never allowing even eligibility for parole, society is indeed condemning a person for good, without any hope of change or redemption.

I have no problem with a system that might, in a given case, constantly refuse parole because the necessary conditions of change in the prisoner, or safety for the public, are repeatedly judged not to have been met. However, to make that decision years in advance, and to deliberately ignore change, or remorse, or Damascene transformation, or successful treatment of mental illness, but rather to incarcerate until death regardless – how exactly is that different from the death penalty? Of course, it’s different in the narrow sense that there is at least time for a miscarriage of justice to be corrected, whilst hanging would not allow that to happen as we’ve repeatedly discovered to our collective shame. But the death penalty is not only wrong because it denies the possibility of correcting mistakes in conviction. It’s also wrong when there is no doubt about the conviction.

It’s always popular when society re-affirms its determination to “lock ’em up and throw away the key”, but popularity is never a very good guide to morality in general, and the criminal justice system in particular. I hold no brief for these particular murderers, and I’m not arguing for their immediate, or even eventual, release. But I am arguing that, in opposition to the court’s decision, these prisoners should also be eligible for parole. That doesn’t, after all, mean that they’ll necessarily ever get it.


2 thoughts on “Whole life tariff: the death penalty by a drawn-out method?

  1. The question, of course, is what do we think incarceration is *for*? If penal policy is founded on the idea of retribution – that someone has taken a life, so their life should be taken, whether by executing them or removing them from normal life until they die – then whole life tariffs make perfect sense. If, however, penal policy is about managing risk to the public and specific victims by removing the perpetrator from society to prevent them from carrying out further such crimes, then there is little logic in keeping a person in prison once the Parole Board is reasonable happy that they now (whether because of age/maturity, groupwork they have been through, the insights they have gained in session with a forensic psychologist, and so on) present a reduced risk.

    The problem as I see it is that we have something of a mixed economy. The vast majority of offenders imprisoned for crimes of a violent or sexual nature will be given the opportunity at some point to demonstrate their progress and be at least considered for parole. Alongside the very few whole life tariff offenders, there is also a much more numerous group of prisoners serving Indeterminate Sentences for Public Protection, who are sometimes in the position of being unable to take the courses they need to demonstrate progress to the Parole Board, because the prisons they are in don’t offer the right groupwork programmes.

    It seems to me unjust to have one rule for the vast majority of prisoners, another for those whose crimes were (however long ago) considered especially heinous who are not permitted to apply for parole, and yet another for those who can apply but will never be able to get it due to the criminal justice system’s inability to provide them with opportunities to make progress. Do we want prisoners’ risk to be lowered? Or do we want them to rot in jail?

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