An indeterminate sentenceIn England and Wales, a life sentence is the ultimate penalty, imposed for offences that have been deemed as the most serious. Except in a handful of cases (fewer than 1%), a life sentence does not automatically mean that the convicted person must be imprisoned for the rest of his or her life. Instead,it means they must be imprisoned for an indeterminate period. If they are later released on parole, their freedom is always conditional. In law, a lifer is therefore always potentially in prison, and can be recalled without further judicial process if the supervising probation officer is concerned that they are breaching the terms of their‘licence’, which sets out the conditions under which they are released on parole. Parole can be revoked if the supervising probation officer is concerned that the terms of the licence may be breached.
Discretionary and mandatory life sentencesSentencing law surrounding life sentences is complex, but a key distinction is that life sentences can be ‘discretionary’ or ‘mandatory’. ‘Discretionary’ life sentences are the maximum penalty that can be imposed for some categories of violent and sexual offending, although in some cases the convicted person can be given a lesser sentence, depending on the judge’s assessment of the aggravating and mitigating circumstances surrounding the offence. Since 2000, the ‘discretionary’ life sentence is in fact automatic provided two things are true: if the offence carries a maximum penalty of life imprisonment and the court determines the convicted person to be ‘dangerous’. This means that in some cases, the sentencing guidelines requiring an ‘automatic’ life sentence give the sentencing judge very little latitude to impose a lesser penalty, making the distinction between ‘discretionary’ and ‘mandatory’ less sharp than it might appear. The ‘mandatory’ life sentence is imposed for murder only, and has its origins in the reform of the law on homicide in the 1950s and 1960s. The mandatory life sentence was created by the 1965 Murder (Abolition of the Death Penalty) Act, specifically to allay concerns that the end of capital punishment represented a significant increase in the leniency of the sentence for murder. In recent years, some have since argued that the law on homicide requires further reform, particularly in that it recognises only two categories of homicide (murder and manslaughter) and thus does not distinguish enough between dissimilar offences. For example, under current law, a contract killing and a fight in which the offender intends to harm the victim but ends up killing them can result in the same conviction (murder), and receive the same mandatory life sentence despite the significantly differences between them in terms of premeditation and planning. Such calls for reform have been made repeatedly since the early 2000s, but as yet the position of successive governments has been to refuse demands for reform on the grounds that the public would not support it.
The ‘tariff’ or minimum termAll life-sentenced prisoners are given a ‘tariff’ or minimum term. This is the minimum period of time that they must spend in prison before they can be considered for parole. Minimum terms vary widely, and have changed over time; in general, the trend over the last twenty years has been for them to get longer, both overall and for comparable offences. For example, the average minimum term imposed for someone given a mandatory life sentence for murder in 2003 was 12.5 years. In 2016, it was 21.3 years. For most of the 20th century, decisions about the minimum term were made not by the sentencing judge but by the Home Secretary, and there was no requirement that he or she should communicate the reasons for the decision to the person convicted. Some felt that this was an unjust excess of executive power, leaving lifers at the mercy of politicians who were likely to be more sensitive to their notoriety than to any positive achievements they had made during their imprisonment. A group of life-sentenced prisoners successfully challenged the policy at the European Court of Human Rights in 1991. It was found to be inconsistent with the principle of the separation of executive and judicial powers, and since a number of reforms have changed the way parole and release operate.
Parole and releaseToday, broadly speaking, judges, and not politicians, set a minimum term. They do so in open court at the sentencing hearing, and are expected to work within parameters set by published sentencing guidelines. Life-sentenced prisoners will spend at least the minimum term in prison. Once it is complete, they apply for their release to the Parole Board, a quasi-judicial body. The Board will consider the case based on official records and on an oral hearing held in the prison. It will make its decision based on criteria of public protection: can the risk of harm to the public that the lifer represents be safely managed in the community? If the answer is ‘yes’, then the Board will order the release of the lifer ‘on licence’ to be supervised by probation staff; if ‘no’, then they will be held in prison.
The licence and the possibility of recallThe licence contains certain conditions which the lifer must fulfil in order to retain their freedom. These vary in degree of strictness, and can be altered,but not revoked. Normal practice is for quite restrictive conditions to be imposed at first, and for these to be relaxed if this is determined to be safe. If a lifer breaches their licence conditions, they will be recalled to prison.Recall does not require a further conviction, nor any suspicion of a further criminal offence, nor for there to be any connection between the original offence and whatever concern led to the recall, nor any further judicial process. The recalled prisoner can apply to the Parole Board to have the recall reviewed.
When does ‘life mean life’?A small but growing number of lifers (currently around 1% of a total of around 7,500) are given ‘whole-life tariffs’. These have only been legally possible since the 2003 Criminal Justice Act, which made it possible for the first time for those convicted of the most serious offences to be imprisoned until death,with no possibility of parole. Critics suggest that to impose whole life tariffs denies the prisoner’s human rights, because it offers no possibility of release and thus no hope for the future. Some prisoners have made legal challenges to the European Court of Human Rights on this basis. To date these appeals have not been successful. Some life-sentenced prisoners remain in prison until they die even if they did not formally receive a whole-life term. This is either because they die before their minimum term is complete, or because they are unable (or do not try) to obtain parole following its completion.
How is the sentence actually planned and served?This question is addressed on the next page.
Image: ‘New growth after the fire’. Credit (with thanks): Marina Shemesh via Public Domain Pictures.