SPARC response to consultation on whole life custody bill

A member of the Scottish Parliament, unable to gain any support from colleagues outside his party, has launched as an individual member a consultation for a Proposed Whole Life Custody Bill (Scotland): Along with numerous other groups, we have submitted a response to the consultation strongly opposing this senseless, cynical attempt. A summary of our submission follows, and the full response will be available on the Government’s website in due course.

As a collective who have spent many years bearing witness to and researching the harms which imprisonment causes to individuals, families and communities, the proposed whole life custody bill makes no sense on legal, moral, ethical, political and social policy grounds. There is no evidence presented that this sentence would improve the safety of individuals or communities, and there is strong evidence to suggest that it would be both inhumane and challenging to implement. We would also strongly argue that there is no need for this proposed sentence, as it adds nothing to existing law.

Scotland already has and makes use of extensive powers of “whole life” punishment. One example of this is by ordering punishment parts (the minimum period of a sentence to be sent in prison) that cannot be completed within one’s life span, such as the  recent example of a 69 year old man receiving a 37 year punishment part (Angus Sinclair the so-called World’s End killer). Scotland also allows life sentences for crimes less than murder through its Order for Lifelong Restriction. England abolished its analogous discretionary life sentence, the Imprisonment for Public Protection (IPP), under a Conservative Government on the grounds that it was inhumane and unjust. Let’s stop talking about Scotland as being “soft” on punishment, and start evidencing the impact of Scotland’s use of existing sentencing law.

The proposal aims to resurrect  the death penalty by another name. Whole life custody, without the possibility of parole, has been described as sentencing a person to “death by incarceration”. As researcher Ashley Nellis points out, such a sentence means “the government has decided how and where the individual will die. When looked at from this view, LWOP is not so different from the death penalty.”

A sentence without hope or end is incompatible with human dignity and just society. Hope, and specifically the hope of release, is central to construction of both a sense of self and also human dignity. Denying a person the possibility to reintegrate is incompatible with human dignity. A sentence of this type has no place in Scottish society.

A damaging direction for penal policy, moving Scotland even further out of step with Europe and closer to a US norm of ‘perpetual punishment’. In 2008 the Scottish Government embarked on a major reform effort (via the McLeish Commission) that documented how prison populations are harmful and damaging not just people in prison but for the communities and society outside of them. The proposed sentence would reverse an aspiration of progress, and entrench a worrying regressive trend: Scotland already leads Europe with the highest proportion of its prison population serving life sentences. This is not the result of more crime or a higher homicide rate, but of sentencing and politicisation of crime policy, of which this consultation is a sad example. Overall this proposal reflects a deep ignorance of current sentence and prison trends and a sad opportunism of going after easy targets – the worst of the worst individuals – that provides cover for a broader lack of ideas and willingness to work hard towards safe, inclusive and thriving communities.

Knock on effects of longer sentences and a growing prison population. The consultation reflects an unacceptable level of ignorance about the upward drift in sentence lengths in Scotland trends and their effects. Those sentenced to prison are spending longer periods in custody and this has knock on effects for the overall size of prison populations and the problems related to this. This is because a small number of very long serving prisoners has a huge impact on availability of cells, squeezing space. The US thought they could build their way out of this problem. Even the most confirmed tough on crime lawmakers across the Atlantic have now renounced this approach.

The introduction of whole life sentences would have negative implications for all of those who come into the criminal justice system, for another reason. This rebranding exercise mainly acts to increase a rhetoric of ‘othering’ all those in the criminal justice system, simplifying the world into “us” law abiding citizens and “them” horrible criminals. These labels are not based on a reality of people who are all good or bad, and we believe people in Scotland deserve better than to be distracted by these patronising debates at a time when crime is at an historic low, and there are much more urgent matters at hand to ensure the country’s security, safety and success.

People can and do change; sentences without end undermine this. It is particularly challenging to devise a prison regime that is both constructive and safe for those serving a sentence of life without parole (and those working with them), because this group of prisoners have no incentive of progression and “nothing left to lose”. Moreover, research conducted in the US by Marion Vannier suggests the people serving sentences of life without parole may be considered low priority for employment or other opportunities within the prison, leaving their efforts to change poorly supported and often unacknowledged (Vannier, 2016). Lengthening sentences, with a whole life term being the extreme case, may actually reduce the chances that the sentence will be spent productively and constructively.

‘Life means life’ call ignores the reality of sentencing

As with most notorious crimes that make the headlines, politicians can’t help but take part in some political point scoring. Ruth Davidson is no exception, and her call for whole- life tariffs after a successful sentence appeal in a harrowing murder case is quite opportunistic. This blog will briefly comment on three issues of this debate – judicial independence and the importance of avoiding undue political influence, how this debate fits in with international norms, and the current position in Scotland concerning life prisoners.

Western democracies consider judicial independence a fundamental and essential element of any free society. Political interventions into sentencing create unnecessary and undesirable interference with the judiciary’s proper consideration of the law and facts of a case. To maintain public confidence and integrity in the legal process, the constitutional guarantee of a fair trial and being treated fairly under the law requires that the judiciary and politics be kept separate. This means that within set legal limits, judges should be left to decide sentence length based on the facts of a case and its compatibility with judicial policy, international norms and convention rights.

The constitutional guarantee of a fair trial and being treated fairly under the law requires that the judiciary and politics be kept separate

Moreover, the debate surrounding ‘life-means-life’ sentences is misleading. Across Europe there are no such sentences without a mandatory review period set by law within each individual state. For example, 16 European countries set this period at approximately 25 years. Most other European countries allow considerably less time in prison before review is required, with 13 EU countries setting this at 15 years or less before the review mechanism kicks in[1]. So even with a ‘life-means-life’ tariff, it is likely Scotland would follow suit and have a review mechanism protected by statute. The only question remaining would be which sentencing policy we would follow. Either way, life still doesn’t particularly mean life.

There are other ways that life sentences are misleading. Prior to 2001[2], life-serving prisoners were not given a minimum sentence in Scotland. This was viewed as being incompatible with the European Convention on Human Rights and has since been rectified so that in Scotland, a judge must always set a minimum term. However, even when a minimum term is set, a life serving prisoner can still spend countless years, sometimes decades, beyond their tariff without ever committing another crime. Simple compliance with the prison regime is now no longer enough to secure progression or release (Crewe 2011)[3]; and our experience suggests that sentence progression is characterised by discretionary, subjective and non-judicial decision-making. For example, progression and release can be denied as a consequence of having a “bad attitude” or around concerns that post-release goals may be unrealistic. The most common reason, however, is the failure to abstain from taking drugs. Not only does this amount to criminalising addiction, but it is not uncommon that the addiction was acquired by the prisoner whilst serving their sentence, often to cope with prison itself.

Even when a minimum term is set, a life serving prisoner can still spend countless years, sometimes decades, beyond their tariff without ever committing another crime

Some might find this fair enough – if you can’t stop taking drugs you should not be allowed in society – except it is now widely accepted that drug addiction should be treated as a health issue and not a criminal justice problem. So effectively in Scotland we appear to be against whole-life tariffs, or at least tariffs without a designated time for sentence review, however we allow people to spend decades in prison for what is effectively a health problem.

The Scottish Conservatives might want to consult some hard data rather than the alternative facts of tabloid headlines about ‘soft touch’ Scotland. There has been a steady decrease in most crimes for years (and a sharp drop in the number of homicides, from 117 in 2011 to 59 in 2016), but sentence lengths are increasing. The average tariff for a life sentenced prisoner in 2000 was 10 years; by 2014, the average tariff had increased 38% to more than 14 years. Sentences are getting longer, and we are beginning to see more and more sentences of two decades or more. Despite Scotland’s sense of itself as less punitive than its neighbour to the south, its sentencing is moving more in the direction of its neighbour to the west, across the Atlantic.

Sentences are getting longer, and we are beginning to see more and more sentences of two decades or more … what social benefit is achieved by doubling or even tripling sentence length?

In addition to asking why sentences are already increasing so much, we should be asking what social benefit is achieved by doubling or even tripling sentence length? After about ten years or so prisoners will have done every programme, taken every course, worked every job in a prison. After that, those faced with another decade or two of incarceration will have very little to engage them, to give them hope and to provide the motivation needed to re-join and participate as positive members of communities.

This blog appeared as a guest post by SPARC for the SCCJR 

[1] (Vinters and Others v The United Kingdom 2003 at 68).

[2] Convention Rights (Compliance) (Scotland) Act 2001

[3] Crewe, B. (2011) ‘Soft power in prison: Implications for staff-prisoner relationships, liberty and legitimacy’, European Journal of Criminology 8(6) 455-468