Should Life sentenced prisoners ever be released? A European Perspective

Late in the year of 1984, English man Erwin James stood in the accused’s dock in a criminal court, where after an eight-day trial, he was found guilty of the murder of two men. The judge described James as “brutal, vicious and callous” and sentenced him to life imprisonment, having to serve at least 25 years before release. Even prior to the murders he already had a long rap-sheet, with 51 criminal convictions.

After periods of loathing and guilt, Mr Erwin met a prison psychologist, who would change his life forever. After years of care, encouragement and reflection, Erwin James was released from prison, and today works with the Guardian newspaper and brings awareness on prison reform.

This story conjures up many emotions, from anger at the wrongs committed, to satisfaction knowing that such a “bad” person could turn his life around. This leads to the question of whether those who commit heinous murder should be imprisoned for life without the possibility of parole, or whether convicts should be rehabilitated as much as possible whilst on the inside to give that person a second chance. This has been the subject of contention brought forward numerous times before the European Court of Human Rights in Strasbourg.

In the landmark judgement ‘Vinter & Others v. UK’ in 2013, the European Court ruled that a life-without-parole sentence runs contrary to human rights and that inmates must have some opportunity for their sentences to be reviewed by a proper parole board, with some prospect for release. This, therefore, included Vinter and two others, serving a whole life sentence for murder.

The court commenced its argument by stating that a prisoner cannot be detained unless there are proper legitimate grounds, which are: punishment, deterrence, public protection and rehabilitation. These factors may not remain fixed throughout a prison sentence, but vary throughout. Thus, it is only by carrying out periodic reviews throughout the sentence that these factors can be evaluated, in order for continuous detention to be justified.

The court noted that without the possibility of a whole life sentence being reviewed, a prisoner may never be encouraged to atone for his offence, and that even if a prisoner does make exceptional strides towards rehabilitation, his punishment remains fixed, thus negating his rehabilitative efforts. It is on this basis that the court concluded that it would be incompatible with human dignity to deprive a person of his freedom without at least providing him with the chance to someday regain liberty.

What is crucial to note here is that the court is not prohibiting whole life sentences per se, but rather prohibiting life sentences where there is no clarity under these conditions and when there is the possibility of reducing the sentence, if at all. On the contrary, if a parole board at a review establishes that the prisoner serving a life sentence is still a danger to society and has made no efforts towards his rehabilitation, then an order of continued detention is perfectly legitimate, but at least there is a proper review.

While this judgement changed the playing field in the legal sense, its reasoning was not completely innovative. Judgements in other European and South American countries had already employed such reasoning and is reflected in their criminal law. In fact, numerous European states such as Austria, France, Belgium and Denmark already provide for a release mechanism for life sentences after a minimum number of years.

Norway only provides for maximum of 21 years imprisonment for any crime, however has a special law which states that in exceptional cases inmates can be kept in continued detention on the basis of public protection. Many think that it is on this basis that Anders Breivik, a Norwegian mass murderer, will be kept behind bars. A few states even went a step further and abolished life sentences, such as Portugal and Croatia.

Malta on the other hand has no review mechanism, so life means life. However, this has not gone unchallenged. In November 2016, Tunisian man Ben Ali Wahid Ben Hassine, a convicted murderer, successfully won a case in our Constitutional Court to declare a whole life sentence as inhumane and to compel the government to introduce a review mechanism with a new law. It is yet to be seen how this will pan out.

I agree with the theoretical stance held by the European court, as it not only allows a wrongdoer to atone for his offences whilst serving an appropriate punishment, but at the same time it also allows a parole board, at a review, to order continued detention for the truly dangerous.

Richard Gambin

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