Lifers

by Geoffrey Wansell

  Yet that disregards a vital tenet of human morality – hope.

  As Judge Ann Power-Forde, the Republic of Ireland’s representative on the European Court of Human Rights, once memorably put it, ‘Hope is an important and constitutive aspect of the human person. Those who commit the most abhorrent and egregious of acts and who inflict untold suffering upon others, nevertheless retain their fundamental humanity and carry within themselves the capacity to change.’

  The fifty-two-year-old judge, who has a doctorate in Jurisprudence and Legal Philosophy from Oxford, went on to add, ‘Long and deserved though their prison sentences may be, they retain the right to hope that, some day, they may have atoned for the wrongs which they have committed … To deny them the experience of hope would be to deny a fundamental aspect of their humanity and, to do that, would be degrading.’

  Against that moral background it becomes ever more difficult to defend the whole life sentence in England and Wales in its present form, with no possibility – or likelihood – of a review of the sentence. Most European countries allow for a sentence review of some kind after twenty or twenty-five years. The International Criminal Court at The Hague even allows a review after twenty-five years for offenders sentenced to life imprisonment for mass genocide. A review would be no guarantee of release, nor would it prevent an offender judged still a risk to society being forced to remain behind bars.

  With suggestions of a fixed term sentence of one hundred years being bandied about by British politicians – which makes the torture of a whole life term even more excruciating – surely it is right that society in this country should reconsider its attitude to the whole life sentence.

  To quote Professor Van Zyl Smit again, ‘Instead of suggesting even longer minimum periods … the Government should be honest with the public. It should stress that considering someone for release is not the same as releasing them … Above all, it should make clear that even the worst offender has the right to hope, for with hope, a person can change.’

  Professor Van Zyl Smit advocates an ‘impartial Parole Board’ as one means of supervising this change, a suggestion I find difficult to accept given the Board’s manifest failings in letting so many prisoners serving what are technically life sentences out to kill again. Nevertheless, I would agree that a review by an impartial body after twenty-five years of a prisoner serving his or her sentence, with further reviews every five years after that, would at least begin the process of destroying the ‘delayed death penalty’ aspect of whole life sentences.

  Even the widely admired former Lord Chief Justice, Lord Judge, has been cautious about using whole life sentence ever more widely, as seems to be becoming the practice.

  ‘The whole life order, the product of primary legislation,’ Lord Judge has said, ‘is reserved for the few exceptionally serious offences in which, after reflecting on all the features of aggravation and mitigation, the judge is satisfied that the element of just punishment and retribution requires the imposition of a whole life order. If that conclusion is justified, the whole life order is justified, but only then.’

  In other words, do not rush to give a whole life term without considering the consequences very carefully indeed. Yet an extraordinarily experienced politician, the former Conservative Home Secretary Kenneth Clarke MP, realises that the demand for the most draconian penalty of all – ‘locking a prisoner up and throwing away the key’ – will always have a visceral appeal, not least to the families of the victims. ‘There will always be a small number of prisoners whose crimes are so appalling that judges rule that they should never become eligible for parole,’ Clarke has said.

  Yet the ugly truth is, as Frances Crook, chief executive of the Howard League for Penal Reform, has pointed out, ‘We have sentence inflation. It’s because politicians in the last two decades have sunk to a level of punitive competitiveness. But there’s no evidence that it offers better public protection. We have more lifers than all the other countries in the Council of Europe together.’

  It has been estimated that there are more than 13,000 prisoners in England and Wales who are subject to life or ‘indeterminate’ sentences – which means that they have to satisfy the Parole Board before they can be released. That is approaching one sixth of the entire prison population, a staggering number of prisoners, and quite unlike any other country in Europe.

  I find the suggestion that there should be longer and longer minimum terms for prisoners exceptionally difficult to justify or support, not least because England and Wales are almost alone in Europe when it comes to handing out a whole life sentence. Spain, Portugal and Norway, for example, do not have any kind of life sentence within their penal system. Every other European country, with the exception of Holland, has fixed minimum terms for prisoners sentenced to life.

  Even Anders Breivik, the thirty-six-year-old killer of no fewer than sixty-nine young people at a summer camp on the island of Utoya in the summer of 2011 (as well as eight people in a bomb blast in Oslo on the same day) was only sentenced to twenty-one years in prison, in a form of ‘preventive detention’ that requires a minimum of ten years’ incarceration and the possibility of an extension of that imprisonment for as long as he is deemed a danger to society. That is the maximum penalty in Norway; although that is not to say that he will be released after serving the twenty-one years, as he may well still be seen as a risk to the public.

  Russia rarely uses an indeterminate whole life sentence for the most heinous crimes, and when it does use one it is restricted to men between the age of eighteen and sixty-five. The maximum sentence most often imposed is twenty-five years, although the period of imprisonment is exceptionally harsh, involving long periods of solitary confinement, sometimes in darkness.

  The United States still has the death penalty in some states, as it does a sentence of ‘life without parole’ (although not usually now for offenders under the age of twenty-one at sentencing).

  A number of European countries have abolished all forms of indefinite imprisonment, including Serbia and Croatia, while Spain sets the maximum sentence at forty years. Bosnia and Herzegovina sets the maximum sentence at forty-five years, while Portugal sets the maximum sentence at thirty years.

  Three African countries, the Democratic Republic of Congo, Mozambique and Cape Verde, have abolished indefinite life imprisonment; the maximum sentence is thirty years in Mozambique and the Democratic Republic of Congo, and twenty-five years in Cape Verde. In Asia, the former Portuguese colony of Macau has outlawed indeterminate sentences, replacing them with a maximum of thirty years.

  In South and Central America, Honduras, Nicaragua, El Salvador, Costa Rica, Venezuela, Colombia, Uruguay, Bolivia, Ecuador and the Dominican Republic have all abolished indefinite life imprisonment, but each has set a maximum sentence. It is seventy-five years in El Salvador, sixty in Colombia, fifty in Costa Rica and Panama, forty in Honduras, thirty-five in Ecuador, thirty in Nicaragua, Bolivia, Uruguay and Venezuela, and twenty-five in Paraguay. Brazil has a maximum sentence of thirty years under statutory law, but capital punishment and life imprisonment during wartime (for military crimes such as treason, desertion and mutiny) are allowed under the Constitution.

  It surely must be time for Britain to follow this lead. Scotland has effectively done so since 2001, preferring determinate maximum sentences – with a usual limit of fifty years. Half a century behind bars seems to me the very most that any human being should be condemned to – unless there are profound reasons why he or she presents a continuing risk to the public’s safety. That would not mean an inev
itable release after fifty years, but it would make release more likely, and would remove forever the ‘delayed death penalty’ element in a whole life term.

  In October 2010, Simon Hattenstone wrote a compelling article in The Guardian detailing some of the letters he had received from whole life prisoners, and one letter in particular underlines the point about hope being an essential part of the human personality. It gives a remarkable insight into what a whole life sentence feels like to the man or woman imprisoned, and how it can be coped with.

  ‘The question of a whole life term is very difficult to put into words,’ the prisoner wrote. ‘It can be simple or complicated, it all depends on the way each individual approaches the sentence. Obviously a sentence such as a whole life takes away all hope of ever being released. So the first thing you do is accept this fact, which strange to say everyone does. It must be part of the human condition to accept disastrous events.’

  The man in question was an armed robber who shot a diamond jeweller in the back and accidentally shot his accomplice at the same time. But he left his accomplice to die rather than call an ambulance or take him to hospital, and then buried him in a railway embankment. He was given a life sentence in 1991 with a recommendation that he should never be released. In 2008 that sentence was squashed and replaced with a minimum term of twenty-five years, with an expected release date in 2017, when the prisoner concerned would be eighty-eight.

  ‘Put it this way,’ the prisoner wrote, ‘every day all round the world people are told by their doctors, you have cancer (for example) and you have six months to live. Once the initial shock wears off, they accept their fate and carry on doing the best they can. Rehabilitation is largely a waste of time. What’s the point when you’re never going out? Those who do courses do them for purely personal reasons, maybe due to a desire to try and understand how and why they came to be in this position.’

  Rehabilitation may be ‘a waste of time’, but redemption is not, and it is the compelling reason why the concept of an endless whole life sentence disturbs me, and should, I believe, disturb British society. It is a ‘delayed death penalty’ and seems to me to have no place in a civilised society. Were it to be replaced by a fixed term of fifty years, which would at least hold out the possibility of release, and acknowledge that an individual – no matter how heinous his or her crime – can change over the period of half a century, would seem to me to a far more accurate reflection of what should be society’s ambition.

  Another whole life prisoner underlines the danger of leaving whole life prisoners to become institutionalised over decades behind bars, so disillusioned by the experience that they become nihilistic, devoid of all hope.

  ‘The past is the past,’ the whole lifer wrote. ‘Nothing good can come out of dwelling too much on things like that. Guilt is a product of obsessive thought, it develops into self-pity, and self-pity serves no purpose in prison other than causing depression, to self-harm and commit suicide. A person can accept their crime and acknowledge the effect it’s had on the victim’s family, and resolve not to do that act again without guilt interfering to complicate matters internally. If I could bring the person back I killed by dying, I wouldn’t hesitate. But I can’t, so I never think about what can’t be changed.’

  Even more dramatically, he concluded, ‘What keeps me going is knowing I’ll be dead soon enough anyway of natural causes. The average male only lives until he’s 60-65. The way I see it, I’m closer to death than birth.’

  Is the aim of a whole life sentence to force the prisoner to look forward to only one thing – his or her own death? I am not in favour of the death penalty, as I could never accept one innocent man or women being killed in error by a miscarriage of justice, but you could argue that leaving a man or woman to rot behind bars for the whole of the rest of their natural life is almost as fierce and ferocious a punishment.

  It does not need to be so. Changes to sentencing to fix a maximum term of fifty years would ease that burden. But there would need to be other changes to go hand in hand with that alteration. The prisons in this country that currently contain some of the worst offenders serving whole life terms – particularly the Victorian-built ‘Monster Mansion’ of Wakefield Prison in Yorkshire – are ill-equipped for the task. There needs to be a rebalancing of the prison estate to take into account the increasing number of violent prisoners serving very long sentences indeed.

  I would argue for the construction of one large and well-staffed ‘supermax’ prison, which would house a large proportion of these most vicious offenders and be staffed and financed to provide the maximum security while offering its inmates the latest therapeutic psychological help. It should be run by prison officers who have been specially trained to deal with offenders serving extended sentences and who may well suffer the signs of ageing as a result of their long period of incarceration.

  At present we rely on the experience of dedicated prison officers who are expected to cope with an ageing prison population as though it is nothing new. The reality, of course, is that as the population overall is steadily ageing so the prison population itself follows it, with the result that an ever-increasing proportion of prisoners are now susceptible to ‘ageing’ diseases like dementia and heart conditions that were certainly less the case twenty years ago.

  If you think back to Dick Clement and Ian La Frenais’ superb BBC television comedy Porridge, there was hardly a character over fifty, and that includes Ronnie Barker’s Norman Stanley Fletcher. Written almost forty years ago, that programme painted an entirely different picture of the prison system than the one that exists now in the twenty-first century. Now we need a prison system and its officers equipped to deal with an ever-ageing population and inmates who are serving longer and longer sentences, including whole life terms. That requires very different regimes, and even the ever-stern and vigilant Mr MacKay would accept that. The possibility that Fletcher might need incontinence pads after a stroke or special nursing for dementia would transform the regime at Slade Prison beyond all recognition. That may sound far-fetched, but it is the reality that the prison system will increasingly have to deal with over the coming decades.

  Contrast the almost homely feel of Fletcher’s cell in Slade with the grim reality of a whole life prisoner’s regime, which – in the worst cases – can mean twenty-three hours in solitary confinement every day of the week, sometimes completely segregated from any other contact, even with other prisoners. If there is an element of education in the system, the prisoner will be in one cell with the teacher in an adjoining cell protected by bars between them. There is no privacy, little human contact, little exercise, and less humanity.

  When asked whether there was any possibility of rehabilitation, one whole lifer replied bitterly, ‘Rehabilitation is just a word politicians use and psychologists dream about.’ But he went on to explain with equal force, ‘People rehabilitate themselves when they’re ready to change, when conditions are conducive to it. They can’t be bribed, blackmailed or forced to rehabilitate themselves.’

  Surely the prison system should at least be able to offer the worst offenders that opportunity, but that is not the case, and there is little sign of any political will to change the existing flawed system. But I must also acknowledge that amendments to the prison system and sentencing for the worst of the worst offenders will never satisfy the families of the victims of the men and women subjected to whole life terms.

  As one whole lifer once put it, ‘If someone killed a member of my family in a similar fashion to what I did, I wouldn’t want them released either. I
t’s only natural.’

  That is the dilemma that lies at the heart of the question of whole life sentences – are they for punishment alone? Do they in any way imply an opportunity for rehabilitation and redemption? It is my view that by sentencing a whole life term, society is implicitly saying that they are for punishment alone – a trade-off against the loss of the death penalty for the worst offenders – and that is something that makes me feel deeply uncomfortable.

  If whole life terms are, in fact, a ‘delayed death penalty’, then that should be made clearer, and the circuitous argument that they still represent some remote possibility of release should be ditched once and for all. If we are intent on ‘throwing away the key’, let us not make any bones about it.

  The present ambiguous and confused compromise which can see offenders convicted of exactly the same crime, be it the murder of Fusilier Lee Rigby by Michael Adebolajo and Michael Adebowale, or the rapes and murders by the ‘Railway Killers’ John Duffy and David Mulcahy, in which one offender in a partnership of murder is given a whole life term while the other is not, serves only to undermine the sentencing process and confuse society.

  If life must mean life then let us say so unequivocally – and reserve that sentence for the very worst offenders – rather than diluting it by implicitly encouraging the judiciary to hand out more and more whole life sentences while the public fail to understand what they mean. One group who do clearly understand, however, are the prisoners themselves. Perhaps it is fitting to leave the last words to one whole lifer who wrote, ‘If I ever walk out them gates, great, so be it, I won’t look back. If I never walk out them gates, that’s just how it is. I expect nothing.’