100-Year Prison Sentences for England and Wales?

This week it has been reported that whole life prison sentences in England and Wales might be replaced with 100-year prison terms.

It comes in response to a ruling from the European Court of Human Rights which declared that whole life orders amount to inhuman and degrading treatment, and therefore breach article 3 of the European Convention on Human Rights (ECHR), because there is no option for them to be reviewed and so no possibility of the release for the offender.

Background

The whole life prison order is imposed for exceptionally serious crimes. A whole life order means the offender will be imprisoned for the remainder of their life: life means life. Theoretically, a whole life order can be imposed whenever a life sentence is imposed, irrespective of the offence. However, whole life orders are almost always imposed for murder. Schedule 21, paragraph 4, of the Criminal Justice Act 2003 provides that a whole life order is appropriate for the offence of murder if the sentencing court considers that the seriousness of the offence is ‘exceptionally high’. For more information on murder sentences, see this earlier article.

In the case of Vinter v United Kingdom (2013) the European Court of Human Rights held that whole life orders breach the right in article 3 ECHR not to be subjected to inhuman and degrading treatment. In essence, this was because there is no review of whole life sentences and so no prospect of release ever for the offender. The court did not object to individuals spending the remainder of their lives in prison, it objected to the lack of a review. The reasons for the judgment are dealt with in detail in this earlier article.

In order to comply with article 3, the Government is considering replacing whole life orders with reviewable 100-year prison sentences.

So how would these differ? And is the change justified?

100-Year Prison Sentences

How would 100-year prison sentences differ from whole life sentences? Not a great deal. Owing to the length of 100-year prison terms they would be whole life sentences in all but name. But, crucially, the 100-year terms would be reviewable so that they are human rights compliant.

If 100-year terms would essentially be reviewable whole life orders, why not just make whole life orders reviewable? Presumably it is because it seems absurd to call the sentence a ‘whole life’ order if it may in fact not last for the remainder of the offender’s life owing the possibility of it being reduced upon review.

However, in attempting to avoid the absurdity of whole life sentences which are not for the whole of the offender’s life, the proposal is to introduce the similarly absurd notion of 100-year sentences. There is little possibility of an offender living long enough to serve a 100-year sentence. To impose such sentences is ridiculous. In America last year, Ariel Castro, who abducted three women and held them captive for more than a decade, was sentenced to life imprisonment without the possibility of release, plus 1,000 years. This sentence was self-evidently nonsense. Passing a sentence that cannot possibly be served in full is hollow. If a sentence for the remainder of an offender’s life is intended then that should be the sentence.

This leads us neatly to the question of whether it is justifiable to impose a whole life sentence.

Are Whole Life Sentences Justifiable?

In Vinter the European Court of Human Rights considered that reviews were necessary because it would violate human dignity not to allow an individual the chance to rehabilitate. However, as I pointed out in the earlier article, this missed the point. Whole life sentences in England and Wales are imposed when the seriousness of an offence is exceptionally high. We have adopted the policy that some offences are so serious that the only suitable punishment is imprisonment for the remainder of the offender’s life; the offender forfeits their right to rehabilitate. Punishment of the offender and, to a lesser extent, deterring others from committing similar crimes justifies the sentence alone. There is no issue of rehabilitation since we have determined that the severity of some offences warrants a punishment where there is no prospect of rehabilitation. The real issue, then, is whether that approach is justified.

Whether that approach is correct or not – whether punishment and deterrence should trump rehabilitation – is not, I do not believe, a question suited to determination by a court. It is a philosophical question which legislators should decide. Perhaps, then, our courts should continue to impose whole life sentences when it is thought such sentences are justified on the basis that the judgment in Vinter misunderstood the nature of English law. The issue can then be revisited in due course by the European Court of Human Rights.

What are your thoughts? Are whole life sentences justified? Should we move to 100-year prison sentences?