the meaning of life without parole essay

Home > VLR > Vol. 43 > Iss. 2 (1990)

Life-Without-Parole: An Alternative to Death or Not Much of a Life at All?

Julian H. Wright, Jr.

This Note will discuss the relatively recent development and current prevalence of one alternative: the life sentence without benefit of parole, commonly called life-without-parole (LWOP). Life-without-parole is the penultimate penalty, meaning in theory the incarceration of convicts for their natural lives without the possibility of release on parole. In practice, LWOP generally means what it says, although various states do retain some release mechanisms for LWOP inmates, like executive commutation or a set term of years. The idea of jailing individuals for the rest of their lives is at least as old in the Western legal tradition as the Tower of London or the Bastille. In the United States, however,such a penalty historically has not been particularly popular. The constitutional system of government in the United States never has allowed persons to be summarily locked away. The American concept of prisons traditionally has been that they exist for rehabilitation and release as much as for incarceration.'

Recommended Citation

Julian H. Wright, Jr., Life-Without-Parole: An Alternative to Death or Not Much of a Life at All?, 43 Vanderbilt Law Review 529 (1990) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol43/iss2/15

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Life without Parole

Catherine Appleton, The University of Nottingham

• Published: 10 September 2015
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This article explores the penological landscape of life imprisonment without the possibility of parole (or life without parole, LWOP) in the twenty-first century. It begins with an overview of the meaning and extent of LWOP sentences across contemporary penal systems worldwide, focusing on the significant increase of LWOP sentences in the United States. It then considers some of the key arguments that have been put forward to justify lifelong imprisonment and goes on to review international law and treaty provisions that have placed important restrictions on the use of LWOP around the world. It also examines the extent to which LWOP sentences are compatible with international human rights standards on the treatment of prisoners. The article argues that the imposition and implementation of whole-life sentences violate fundamental human rights. It concludes by outlining potentially important areas for future research.

Second to the death penalty, life imprisonment without the possibility of parole (or life without parole, LWOP) is the ultimate penalty. It is the permanent removal of an individual from society with no possible hope of redemption, no hope of release. Some death penalty opponents and supporters alike have assumed LWOP sentences to be the lesser, natural alternative sanction to capital punishment, and there has been a marked increase in the imposition and implementation of whole-life sentences in certain parts of the world. Of most significance, there has been a rapid and extraordinary increase in the number of people who will be detained in custody for the rest of their natural lives in the United States. Yet very rarely has any effort been made to examine the full import of this sentence, its method of implementation, or its compatibility with humanitarian principles. 1

The aim of this article is to review critically the penological landscape of whole-life sentences on a global scale. First, it explores the meaning and extent of LWOP sentences worldwide and focuses on the dramatic increase of LWOP sentences in the United States. Second, it assesses some of the key arguments put forward by supporters of lifelong imprisonment. Finally, it reviews international law and treaty provisions that have placed important restrictions on the use of LWOP around the world and considers the extent to which LWOP sentences violate international standards of human rights.

The Meaning and Extent of LWOP

LWOP is the ultimate life sentence. While the term life sentence can also include various indeterminate sentences—or sentences that can be reduced in length by commutation, pardon, or parole—LWOP has been described as “the true life sentence.” 2 It removes any uncertainty at the time of sentencing about the possibility of release by condemning the individual to die in prison. While in a few instances the possibility of release before death is not completely foreclosed, 3 in practice LWOP usually means what it says. 4 The meaning and severity of this ultimate life sentence has been recognized by the United States Supreme Court. In Graham v. Florida , the Court stated:

[L]ife without parole sentences share some characteristics with death sentences that are shared by no other sentences. The State does not execute the offender sentenced to life without parole, but the sentence alters the offender’s life by a forfeiture that is irrevocable. It deprives the convict of the most basic liberties without giving hope of restoration, except perhaps by executive clemency—the remote possibility of which does not mitigate the harshness of the sentence. As one court observed in overturning a life without parole sentence for a juvenile defendant, this sentence “means denial of hope; it means that good behavior and character improvement are immaterial; it means that whatever the future might hold in store for the mind and spirit of [the convict], he will remain in prison for the rest of his days.” 5

Other life sentences, while not guaranteeing a prisoner’s release, inherently incorporate the possibility of review and eventual release. Indeed, most penal systems around the world that enforce a sentence of life imprisonment allow for the possibility of review by a parole board or a court to assess a life-sentenced prisoner’s prospect of release, usually on the basis of demonstrating reformation, reduced risk, or good behavior. Conversely, a life without parole sentence means the prisoner has no hope of release in his or her lifetime, regardless of his or her efforts at rehabilitation. LWOP, like the death penalty, changes the course of an individual’s trajectory by a forfeiture that is irrevocable. Such sentences represent a policy of “permanent exclusion” 6 of the individual from society, and have been likened to a “civil death.” 7

Formal LWOP sentences, however, are not the only way that people can be confined in prison until natural death. Individuals can also be subject to other sentences that are effectively whole-life terms, such as lengthy determinate sentences that far exceed an individual’s life expectancy, or be detained indefinitely on grounds of mental illness or the risk they pose to society. Such sanctions are not labeled in law as whole-life imprisonment, but individuals serving those sentences share a common trait with LWOP prisoners: with few exceptions, they will remain confined behind bars until death. Moreover, although the majority of people serving life sentences technically retain the possibility of parole, the gradual reduction of meaningful parole consideration in certain jurisdictions over recent years has effectively transformed many life sentences into whole-life sentences, even for prisoners who are able to demonstrate their rehabilitation and suitability for release. 8

Importantly, the punishment of LWOP is a relatively rare phenomenon. In Europe, most countries have no discernible statutory provision allowing for lifelong imprisonment. This is either because a formal sentence of life imprisonment does not exist, or because they have a dedicated mechanism for reviewing life sentences after the prisoner has served a certain minimum period fixed by law. At the time of writing, there are nine member states of the Council of Europe that have no formal provision for life sentences: Andorra, Bosnia and Herzegovina, Croatia, Montenegro, Norway, Portugal, San Marino, Serbia, and Spain. The maximum term of imprisonment in these countries ranges from 21 years in Norway 9 to a 50-year sentence in Croatia, in a case of cumulative offences. 10 Thirty-two countries have fixed periods after which the life-sentence prisoner is able to be considered for release: Albania (25 years), Armenia (20), Austria (15), Azerbaijan (25), Belgium (15 with an extension to 19 or 23 for recidivists), Bulgaria (20), Cyprus (12), Czech Republic (20), Denmark (12), Estonia (30), Finland (12), France (normally 18 but 30 years for certain murders), Georgia (25), Germany (15), Greece (20), Hungary (20 unless the court orders otherwise), Ireland (7 except for certain types of murders), Italy (26), Latvia (25), Liechtenstein (15), Luxembourg (15), Moldova (30), Monaco (15), Poland (25), Romania (20), Russia (25), Slovakia (25), Slovenia (25), Sweden (10), Switzerland (15 reducible to 10 years), the former Yugoslav Republic of Macedonia (15), and Turkey (24 years, 30 for aggravated life imprisonment and 36 for aggregate sentences of aggravated life imprisonment). 11

Currently, there are several jurisdictions within Europe that have systems of parole for most life sentence prisoners but which nevertheless make special provision for certain offences or sentences in respect of which parole is not available. These include Bulgaria, England and Wales, Hungary, Slovakia, Switzerland (for sex or violent offenders who are regarded as dangerous and untreatable) and Turkey. There are five countries in Europe that make no provision for parole, and all life prisoners are sentenced to whole-life terms: Iceland, Lithuania, Malta, the Netherlands, and Ukraine. These countries do, however, allow prisoners to apply for commutation of life sentences by means of ministerial, presidential, or royal pardon. Furthermore, the courts in Iceland have never imposed a sentence of life imprisonment, although the sentence is available in law. 12

The position outside of Europe is less clear. Evidently many countries retain the death penalty as the ultimate penalty, some have LWOP, some have parole-eligible life sentences, and some make no provision for life imprisonment at all (most notably across Central and South America, where life imprisonment has been outlawed in most countries). 13 According to research carried out by the University of San Francisco in 2012, only 20 percent of the 193 member states of the United Nations make provisions for whole-life sentences. Beyond Europe, this includes Australia, Ethiopia, Israel, Kenya, New Zealand, Sierra Leone, Tajikistan, Tanzania, the United States, and Zimbabwe. 14 Although the current position is difficult to ascertain, those countries that do allow for LWOP generally apply the sentence sparingly and have extremely low numbers of prisoners serving such sentences. For example, Australia has 59 known cases, 15 Bulgaria has 46, 16 England and Wales has 50, 17 the Netherlands has 37, 18 and Tajikistan has 52. 19 Furthermore, the courts in New Zealand have never imposed a sentence of LWOP. 20 In stark contrast to these and other nations, however, there has been a rapid and extraordinary proliferation over recent decades in the number of people who will be detained in custody for the rest of their lives in the United States.

LWOP laws first became prominent in the United States following the Supreme Court’s 1972 decision in Furman v. Georgia , 21 which temporarily abolished the death penalty. Since then, LWOP has grown to encompass many more people than it was first intended to punish. Whole-life sentences in America today stand at an unprecedented level: 49 of 50 states, the federal government, and the District of Columbia allow for LWOP sentences. 22 Six states—Illinois, Iowa, Louisiana, Maine, Pennsylvania, and South Dakota—and the federal government require all life sentences to be irreducible. 23 As a result, the rise in the number of prisoners serving whole-life terms in the United States has been astounding. A comprehensive study carried out by The Sentencing Project in 2013 revealed that during the period 1992 to 2012, the LWOP prison population in America quadrupled nationwide, from 12,453 to 49,081 individual prisoners. 24 In other words, one out of every 30 people in prison in the United States has been permanently removed from society. Although LWOP laws are available in almost every state, such prisoners are disproportionately represented in California, Florida, Louisiana, Michigan, and Pennsylvania. 25 Together, these five states account for more than half (57.7 percent) of the total number of all LWOP sentences nationwide. 26 Research by the University of San Francisco suggests that per capita, the LWOP population in America is 51 times larger than Australia’s, 173 times England and Wales’s, and 59 times the Netherlands. 27

In addition, the United States is a nation virtually alone in its willingness to sentence children convicted of crimes when younger than 18 years of age to LWOP. There is near-universal agreement against imposing LWOP sentences on children. 28 Indeed, a whole-life term cannot be imposed on a child in any European country. Furthermore, the majority of European countries do not permit life sentences to be imposed on children at all. 29 Exceptional countries that do allow for indeterminate sentences to be imposed on some children are bound by Article 37(a) of the United Nations Convention on the Rights of the Child, which explicitly prohibits the imposition of “imprisonment without the possibility of release … for offences committed by persons below eighteen years of age,” and therefore requires a formal mechanism for considering their release. By contrast, a child in the United States can receive a sentence of whole-life imprisonment in 41 states. 30 Recent figures have revealed that there are at least 2,498 children (2,435 males and 63 females) in the United States serving sentences of life without the possibility of parole. 31 In two landmark judgments for juvenile justice, the Supreme Court has ruled that children cannot be sentenced to whole-life imprisonment for non-homicide crimes 32 or mandatory sentences of LWOP for any crime 33 ; however, the sentence was not abolished, and children can still receive whole-life terms for felony murder and other homicide crimes through discretionary judicial decision making. 34

Of further import, most jurisdictions that allow for whole-life imprisonment reserve the sanction for the few exceptionally serious offences, for the gravest of crimes. In England and Wales, for example, whole-life orders are allowed only in the following cases: premeditated killings of two or more people; sexual or sadistic child murders; murder for political, religious, or ideological cause; and murder committed by an offender previously convicted of murder. 35 By comparison, LWOP has become readily available as a sanction in the United States, not only for the offence of murder, but also for a greater range of other crimes. Indeed, 37 states have made LWOP available for non-homicide offences, including robbery, some drug crimes, and even some property offences. 36 According to a recent study by the American Civil Liberties Union (ACLU), there were at least 3,278 prisoners serving LWOP for drug, property, and other nonviolent crimes in the federal system and in nine other states that provided such data. 37 LWOP is also mandatory upon conviction for at least one specified offence in 29 jurisdictions in America (28 states and the federal government), 38 thus denying the court any discretion to consider the circumstances of the crime or the defendant.

In addition, sentencing laws targeting habitual criminals (so-called “three-strikes laws”) have resulted in a growing number of prisoners sentenced to spend the whole of their lives in prison. LWOP is a mandatory sentence upon a third conviction of a certain specified felony offence (not necessarily serious or violent) in 13 states and the federal government. 39 In some states, the impact of habitual criminal statutes on the life-sentenced population has been significant. In Washington, for example, two-thirds of prisoners serving LWOP have been sentenced under the state’s three-strikes law, which came into effect in 1994. 40 The net result of this expansion is that the imposition and implementation of LWOP sentences has reached unprecedented levels in America in recent years. LWOP has been used to punish both adults and children who at one time would have received much more lenient sentences.

Justifying LWOP

Arguably, the foremost justification for LWOP sentencing laws is the protection that it offers society from dangerous offenders. 41 Whole-life sentences are an attractive option to governments who require a punishment that equals the death penalty in its incapacitatory and exclusionary effect but eliminates the risk of wrongful executions. Support for LWOP sentences is largely premised on the assumption that life-sentenced prisoners will commit further offences if released. Across the United States, mounting public dissatisfaction with “the vagaries of the parole system,” 42 particularly during the 1980s and 1990s, prompted certain states to legislate for LWOP. 43 Doubtless, LWOP appeals to those members of the public who have become increasingly frustrated at offenders being sentenced to “life” but then being released from prison early on parole. Indeed, the expansion of LWOP sentencing in the United States can be attributed, in part, to the adoption of “truth-in-sentencing” laws and was intended to guarantee that a life sentence means lifelong detention in prison. 44 LWOP is the most obvious and expeditious way to effect permanent incapacitation and eliminate the possibility of future reoffending on release.

Reconviction studies suggest, however, that life sentence prisoners who are released on parole have very low rates of recidivism. For example, a 2011 study by the New York State parole board found that of the 368 people convicted of murder who were granted parole in New York between 1999 and 2003, only six, or 1.6 percent, returned to prison within three years for a new felony conviction—and none for a violent offence. 45 Analysis of reconviction rates in England and Wales has revealed that of 1,719 life sentence prisoners who were released between 2000 and 2007, 73 or 4.2 percent were reconvicted of an offence, of which 30 (0.5 percent) were reconvicted of a serious offence. 46 There is considerable research evidence that lifers released under supervision in the community have lower reconviction rates than any other sanction, 47 and that thus LWOP sentences are excessive from a public safety perspective. At some point, whether based on age, ill-health, or reformation, it is foreseeable that many life sentence prisoners could be considered to be no longer dangerous. As Nellis (2010 : 28) suggests, “lifers are uniquely situated to desist from crime upon release because of the duration of their imprisonment, the maturity they are likely to gain in prison, and their age upon reentry into the community.” 48

Proponents of LWOP must also consider that incapacitating people for life will result in an increased and aging prison population and will have a significant impact on the cost and management of the prison service. Although cost estimates fluctuate for the care of an aging individual in prison, it has been submitted that the average health care costs for a 40-year-old prisoner are twice what they are for people in their early 20s, and that the average costs for people in their 70s are three times greater than for people in their early 40s. 49 Over recent decades, correctional facilities across the United States have become home to a growing number of aging LWOP prisoners, increasing the burden on taxpayers to fund the cost of housing elderly prisoners. 50 Indeed, a growing number of states have been confronted with the complex, expensive repercussions of harsh sentencing practices, and legislators and policymakers have become increasingly willing, perhaps unsurprisingly, to consider early release for older persons who pose a minimal risk to public safety. 51

Though research studies have consistently shown that individuals serving life and long-term prison sentences are often the most compliant prisoners, 52 whole-life imprisonment may also create a difficult environment for managing LWOP prisoners during the early months and years of their sentence. It has been suggested that the imposition of LWOP has the potential to create a “new breed of superinmates, prone to violence and uncontrollable,” 53 and that the sentence provides few incentives to ensure the cooperation and compliance of whole-life prisoners who have neither hope nor anything to lose. The slim sociological evidence available suggests that LWOP prisoners can be understood by fellow inmates as having nothing to lose, and can be targeted and asked to carry out violent acts on behalf of other prisoners. 54 According to Liebling, LWOP sentences “create an environment of no hope, no meaning … When you’ve ruled out the possibility of atonement, most of the ways out are dangerous.” 55

Another penological justification for imprisoning an individual for life lies in the retributivist notion of just deserts: convicted murderers should be incarcerated until death simply because they deserve it. The goal of retribution supports a punishment equal to the culpability of the offender and the harm caused. Thus, a core tenet within the just-desert theory of retribution is the concept of proportionality. 56 This concept demands that an individual receives exactly the amount of punishment that he or she deserves for the crime committed, no more and no less. Even assuming that there are some crimes so grave that they are deserving of lifelong incarceration for the purposes of pure punishment, the wide range of crimes currently punishable with LWOP in the United States, 57 not to mention the racial disparity in the application of the sentence, 58 makes it difficult to support the supposition that LWOP sentences are imposed only when proportionate to the offence and deserved by the offender. Moreover, the question remains whether an LWOP sentence for a given crime is a proportionate punishment, given the offender’s culpability and the harm caused.

The retributive power of LWOP, however, has also been promoted by some death penalty abolitionists in the United States. The result has been a “strange pairing of death penalty abolitionists with pro-incarceration activists and legislators,” 59 joining to endorse LWOP as a stronger and more reliable punishment in order to reduce the number of executions. As Bedau (2004) has suggested, America’s capital trial juries, in certain jurisdictions, have “greatly reduced their volume of death sentences once the legislature enacted the option of LWOP.” 60 Furthermore, recent polls suggest that public support for capital punishment significantly diminishes when presented with an alternative of LWOP. A national survey of 1,500 registered voters, carried out in 2010, showed a clear majority of voters (61 percent) would choose LWOP, rather than the death penalty, as a punishment for murder. 61 Thus, support for capital punishment can be undermined effectively by upholding LWOP as a viable, tough alternative.

Notwithstanding the effect on reducing executions and decreasing public support for the death penalty, the vast expansion of LWOP statutes in the United States has largely affected individuals who never would have been sentenced to death or even been eligible for the death penalty. Recent figures from the Death Penalty Information Center reveal that between 1992 and 2013, the number of prisoners on death row in the United States increased from 2,575 to 3,088, 62 whereas the number of prisoners incarcerated for LWOP has risen from 12,453 to 49,081. 63 In other words, while the death row population has grown by 20 percent, the population of those incarcerated for LWOP increased by 294 percent. Rather than saving lives, LWOP statutes have toughened the sentences of defendants who would have never received the death penalty. 64

Of further import, some leading opponents of the death penalty have questioned abolitionists who support LWOP, stating that it too is an unreasonably severe sanction: “The dilemma of the opponent of the death penalty, if current research survey is a reliable guide, is that at present the public is prepared to accept the abolition of capital punishment only if the alternative to it is itself a morally unacceptable deprivation of liberty”. 65 It has been reported that many prisoners would prefer the death penalty given the alternative of spending the rest of their life in prison, often in harsh conditions. 66 The severity of LWOP has also been recognized in the decision of some states not to extradite offenders to countries where they might be subjected to a whole-life sentence. For example, a number of Latin American states with a Catholic tradition view any life sentence to be as cruel and inhumane as a death sentence and contrary to goals of prisoner rehabilitation. As a result, many South American extradition agreements prohibit the extradition of prisoners who may face life imprisonment in the requesting state. 67 While some death penalty opponents may regard the acceptance of LWOP sentences as the only way of abolishing capital punishment, they should consider the possibility that they may be supplementing one disproportionately severe punishment for another.

A third justification for lifelong detention is deterrence, but there is a growing consensus among experts on sentencing and crime that imprisonment and lengthy sentences do not necessarily deter offenders and would-be offenders from committing crimes. Research findings appear to substantiate Italian philosopher Cesare Beccaria’s provocative claim in the 18th century that the certainty (and the celerity) of punishment is a far greater deterrent to crime than the severity of punishment. 68   Gottschalk (2012) has recently reported that the most convincing studies seem to indicate that “increases in the severity of punishment have at best only a modest deterrent effect,” 69 and that “lengthening a sentence from, say, 15 years for a certain offence to life in prison is unlikely to have much of an effect on whether someone commits that crime or not.” 70

Overall, LWOP cannot be justified by reference to any of the established purposes or principles of sentencing. In addition, LWOP sentences remove any ambiguity allowing for the possibility of rehabilitation. The United States’ excessive use of life without parole sentences is at odds with international human rights standards requiring states to uphold the promise that “the penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation” 71 and with a number of key international developments in which rights-based criteria have placed important limitations on the imposition and implementation of lifelong detention around the world.

International Human Rights Standards and LWOP

International law, including both treaty provisions and norms of customary international law, guarantees that all persons deprived of their liberty have a right to be rehabilitated. The International Covenant on Civil and Political Rights (ICCPR), ratified by 168 countries (including the United States), incorporates an explicit provision guaranteeing an individual’s right to “social rehabilitation” 72 following a term of incarceration and also recognizing that such treatment derives from the need to respect “the inherent dignity of the human person.” 73 The United Nations Human Rights Committee, charged with monitoring the implementation of the ICCPR, stated in its General Comment 21 that “No penitentiary system should be only retributory; it should essentially seek the reformation and social rehabilitation of the prisoner.” 74

A number of international criminal tribunals prohibit LWOP sentences. The new International Criminal Court (ICC), which tries persons accused of the most serious of crimes of international concern, namely genocide, war crimes, and crimes against humanity, cannot sentence convicts to whole-life sentences. At the ICC, life sentences are reviewable after 25 years. 75 The Rome Statute, the treaty adopted by the ICC, has been joined by 122 States parties (effective as of May 13, 2013), 76 indicating an emerging consensus on the appropriate level of punishment for the world’s gravest of crimes. At the Extraordinary Chambers in the Courts of Cambodia, life sentences are reviewable after 20 years. 77 Though not legally binding, the guiding principles provided by the United Nations Standard Minimum Rules for the Treatment of Prisoners 78 also draw attention to the rehabilitative function of incarceration. Standard minimum rule 61 states: “The treatment of prisoners should emphasize not their exclusion from the community, but their continuing part in it. Community agencies should, therefore, be enlisted wherever possible to assist the staff of the institution in the task of social rehabilitation of the prisoners.”

As noted previously, LWOP is expressly prohibited by international law and treaties for offences committed by persons below the age of 18. Article 37(a) of the Convention on the Rights of the Child, for example, states that “No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below 18 years of age.” The fact that this Convention has been ratified by all but three countries of the world (the United States, Somalia, and South Sudan) 79 indicates near-universal agreement that LWOP should not be imposed on child offenders.

Though far from worldwide, there is an emerging trend across Europe that the same should apply to adults. A significant number of European resolutions and recommendations reject the use of LWOP sentences and instead promote the idea that human rights norms require prisoners serving life sentences to be treated as capable of rehabilitation. As long ago as 1976, the Resolution of the Council of Europe Committee of Ministers on the Treatment of Long-Term Prisoners stated that

[I]t is inhuman to imprison a person for life without any hope of release. A crime prevention policy which accepts keeping a prisoner for life even if he is no longer a danger to society would be compatible neither with modern principles on the treatment of prisoners during the execution of their sentence nor with the idea of the reintegration of offenders into society. Nobody should be deprived of the chance of possible release. 80

The early policy of the Committee of Ministers was to ensure that long-term and life-sentenced prisoners had regular reviews of continuing detention. Resolution 76(2) on the Treatment of Long-Term Prisoners, February 17, 1976, expressly asserted that there should be reviews “as early as possible” 81 to ensure that conditional release (parole) could be made as appropriate. This policy has continued to be reaffirmed in other documents adopted by the Committee of Ministers over recent decades. Recommendation (2003)22 September 24, 2003, states

In order to reduce the harmful effects of imprisonment and to promote the resettlement of prisoners under conditions that seek to guarantee the safety of the outside community, the law should make conditional release available to all sentenced prisoners, including life-sentence prisoners. 82

The explanatory memorandum to the Recommendation adds:

Life-sentence prisoners should not be deprived of the hope to be granted release … Firstly, no one can reasonably argue that all lifers will always remain dangerous to society. Secondly, the detention of persons who have no hope of release poses severe management problems in terms of creating incentives to co-operate and address disruptive behaviour, the delivery of personal-development programmes, the organization of sentence-plans and security. Countries whose legislation provides for real-life sentences should therefore create possibilities for reviewing this sentence after a number of years and at regular intervals, to establish whether a life-sentence prisoner can serve the remainder of the sentence in the community and under what conditions and supervision measures. 83

These issues were also affirmed in the Committee of Minister’s Recommendation on the treatment of life sentence and long-term prisoners, Recommendation (2003)23, October 9, 2003, where, inter alia, the principles of individualization 84 ; normalization 85 ; and, progression 86 were considered to be essential to prevent and counteract the damaging effects of long-term and life imprisonment. 87 It was noted by the Committee that such interventions should be provided from the start of a sentence. 88 Further, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) prepared a report on “actual/real life sentences” on June 27, 2007, which reviewed various recommendations and texts on life imprisonment and stated that conditional release is relevant to all prisoners, “even to life prisoners,” 89 and that although all Council of Europe member states had provision for compassionate release, this “special form of release” was distinct from conditional release. 90 The report also favorably cited the CPT’s report on its 2007 visit to Hungary in which it stated: “[A]s regards ‘actual lifers’, the CPT has serious reservations about the very concept according to which such prisoners, once they are sentenced, are considered once and for all as a permanent threat to the community and are deprived of any hope to be granted conditional release.” 91 The report concluded that no prisoner should be “stamped” as likely to spend their natural life in prison; no denial of release should ever be final, and not even recalled prisoners should be deprived of hope of release. 92

A number of national constitutional courts in Europe, and elsewhere, have ruled LWOP sentences to be incompatible with their constitutions. The constitutional courts of France and Italy, for example, have explicitly recognized that an offender sentenced to life imprisonment has a fundamental right to be considered for release. 93 In addition, the German Federal Constitutional Court ruled in 1977 that a whole-life sentence invariably entails the loss of human dignity and the related denial of the right to rehabilitation, and that prisoners serving life sentences must have a fundamental right to be considered for release under clear procedures. In German law, there could be no life imprisonment without the prospect of release. 94

More recently, and of major significance, the European Court of Human Rights (ECtHR), the judicial body that adjudicates compliance with the European Convention for the Protection of Human Rights, has recognized that life sentences with limited hope of review or release violate the European Convention. In a landmark decision on July 9, 2013, the Grand Chamber of the ECtHR concluded by a vote of 16 to 1 in Vinter and Others v. the United Kingdom that “whole life orders” with extremely limited or no possibilities for review and release violate Article 3 of the Convention, which prohibits inhuman or degrading treatment. The Chamber stated that

[I]n the context of a life sentence, Article 3 must be interpreted as requiring reducibility of the sentence, in the sense of a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds. 95

The Grand Chamber established in Vinter that in order for a sentence of life imprisonment to be Article-3 compatible, it must be reducible both de jure and de facto . In other words, there must be a legal procedure creating a prospect of release, and a practical possibility of release from prison within the prisoner’s lifetime, provided that he or she no longer poses a threat to society. 96 Whole-life prisoners should therefore be given the opportunity to attain rehabilitation and the right to a prospect of release if they achieve it (and thus no longer pose a threat to society). Furthermore, the Court stated that whole-life prisoners are entitled to be informed, “at the moment of the imposition of the whole-life sentence,” 97 what they must do to be considered for release, under what conditions and when a review of the sentence will take place or may be sought. After considering comparative law and various international treaties, the Grand Chamber recommended an “institution of a dedicated mechanism guaranteeing a review no later than twenty-five years after the imposition of a life sentence, with further periodic reviews thereafter.” 98

The seminal ruling in Vinter is the product of a jurisprudential evolution in Europe as regards prisoners’ human rights under Article 3. In a line of Court cases, including Kafkaris v. Cyprus (2008), 99 and Harkins and Edwards v. the United Kingdom (2012), 100 the European Court in Strasbourg has incrementally expanded the reach of Article 3 to reinforce and strengthen the judicial protection of prisoners’ human rights. 101 A clear trend has emerged in favor of a mechanism guaranteeing a review of life sentences, at the latest 25 years after their imposition. Of further import, and in line with its position on Vinter , the Former Fifth Section of the ECtHR ruled in Trabelsi v. Belgium on September 4, 2014 that Article 3 of the European Convention on Human Rights requires Council of Europe member states not to extradite persons within their jurisdiction to states where they are liable to be sentenced to life imprisonment and where the legal system does not provide for an appropriate objective mechanism of review of the whole-life sentence. 102 The European Court found that Belgium had violated the prohibition of torture and degrading or inhuman treatment enshrined in Article 3 by extraditing the applicant to the United States as there was a real risk that he would be condemned to an effectively irreducible life sentence, that is, a life sentence not reducible through an appropriate review mechanism.

In the rulings in Vinter and Trabelsi, the European Court seems to have consolidated a clear trend that has emerged in comparative and international law, emphasizing a concrete right to rehabilitation and the “right to hope,” underpinned by the concept of human dignity. 103 A failure to recognize the human dignity of a prisoner and his or her right to hope would make a life sentence inhuman and degrading and thus violate Article 3 of the European Convention on Human Rights. This right to hope must now not only be recognized in member states’ legal systems in order for life sentences to be compatible with Article 3 but it will also prevent extradition to non-member states where life prisoners are not legally entitled to a genuine prospect of release. Some significant gaps, however, remain. In Vinter , for example, the Court established that a possibility of release in exceptional and largely compassionate circumstances was an inadequate prospect of release, yet it did not clearly establish what a “Vinter review” would entail. 104 This lack of clarification of what must be provided in order for a sentence of life imprisonment to be Article-3 compatible it makes it difficult for member states to know how to meet this requirement and for jurisdictions beyond Europe, not bound by the European Convention, to fulfill what is permissible under Article 3 so as to render extradition lawful. 105

There has also been some political backlash to the Court’s decisions, particularly in England, accusing the European Court of paving the way for the release of whole-life prisoners. 106 However, such criticism is ill-founded. To be clear, the Grand Chamber’s decision in Vinter does not ban the imposition of whole-life sentences and does not mean that dangerous offenders should be released while they continue to pose a risk to society. But the Court has affirmed that recognition of the value of human dignity requires that all prisoners, irrespective of the gravity of the offence committed, should be given the opportunity to rehabilitate themselves and a genuine possibility (or hope) of release if such rehabilitation is achieved. Thus, while the situation of Douglas Vinter or Nizar Trabelsi is unlikely to change, the European Court in Strasbourg has set an important precedent in emphasizing the significance of the rehabilitative aim of imprisonment and in strengthening the scope of Article 3 and the judicial protection of prisoners’ human rights and human dignity.

Nevertheless, in spite of Vinter and Trabelsi , the recent judgment by the ECtHR in Hutchinson v. the United Kingdom 107 suggests the goal of reforming whole-life imprisonment in Europe may not be straightforward. The case concerned the complaint of a British national serving a whole-life sentence for murder that his sentence amounted to inhuman and degrading treatment because he had no hope of release. The ECtHR had found in Vinter that the Justice Secretary’s power to grant release to a whole-life prisoner, contained in section 30 of the Crime (Sentences) Act 1997, was insufficient; that the restrictive way in which the Justice Secretary had indicated in the Prison Service Orders that the power would be exercised could mean that a prisoner would continue to be detained in circumstances where, although he was not terminally ill or physically incapacitated, there was no legitimate penological basis for his detention. However, in R v. Newell; R v. McLoughlin , of February 18, 2014, the English Court of Appeal explicitly addressed these concerns and held that, under section 30 of the 1997 Act, the Justice Secretary, notwithstanding the Prison Service Orders, was not limited to a restrictive review policy, but had to take into account any and all exceptional circumstances that could be relevant to the release of a prisoner on compassionate grounds. Specifically, it held that he has a duty to read section 30 in a manner compatible with Article 3 of the European Convention of Human Rights, as in law all his actions must be guided by the Convention. If an applicant believed that the Justice Secretary had failed to apply section 30 correctly in the light of the Convention, his decision could be subjected to judicial review.

In Hutchinson , the Fourth Section of the Strasbourg Court examined the ruling of the English Court of Appeal closely, and cited it heavily in its judgment. Although the Court affirmed the right to hope for those sentenced to whole-life orders, and reiterated the point that a whole-life tariff without a form of review is incompatible with Article 3, it held (by six votes to one, with Judge Kalaydjieva dissenting), that:

In the circumstances of this case where, following the Grand Chamber’s judgment in which it expressed doubts about the clarity of domestic law, the national court has specifically addressed those doubts and set out an unequivocal statement of the legal position, the Court must accept the national court’s interpretation of domestic law. 108

The Strasbourg Court seemed to accept in Hutchinson that because there was a power to release a prisoner in exceptional circumstances, and because that would have to be done in a manner which was compliant with Article 3, there was no substantial breach of the Convention. However, significant questions remain. Of particular note is the extent to which this jurisprudence addresses the concerns about the English procedure expressed by the Grand Chamber in Vinter . Since the Court of Appeal’s ruling in McLoughlin , there have been five further decisions by the European Court that have demonstrated that the mere existence of a power to grant release may be insufficient to discharge the obligations imposed by Article 3 because it may not fulfill the procedural criteria set out in Vinter . 109 These cases confirm beyond doubt that for a whole-life order to be compliant with Article 3 of the Convention it must be reviewed after a fixed time, subject to precise published criteria, governed by the standards of procedural fairness, and communicated to the prisoner at the outset of the sentence, none of which is reflected by section 30 of the 1997 Act. Furthermore, there is a serious question whether a review by a political actor—the Secretary of State for Justice—is sufficiently independent to comply with modern human rights standards. To that extent, the decision in Hutchinson represents a retrograde step in achieving legal certainty and procedural fairness in this area of law. On June 1, 2015, however, a panel of five judges at the Strasbourg Court decided to refer this case to the Grand Chamber. 110 The extent to which this will lead to a significant change remains to be seen.

The United States is one of several jurisdictions that allow for the imposition of whole-life sentences, and it is by far the world’s leader in the number of persons convicted to life imprisonment without the possibility of parole. The underlying rationales typically offered in support of LWOP sentences include the protection that LWOP offers to society from dangerous offenders, its strong retributive element, and its serious deterrent effect. Yet such arguments cannot be justified in the light of evidence that suggests LWOP sentences impose unnecessary costs on the public, have little regard for the principles of proportionality, and have a limited impact on the future behavior of potential offenders. Furthermore, no one can argue that all life sentence prisoners will remain dangerous to society.

There is also wide agreement in Europe that all persons deprived of their liberty have a right to be rehabilitated and that a prisoner’s incarceration without any hope of release conflicts with fundamental human rights. ECtHR decisions in the cases Vinter and Others v. the United Kingdom (2013) 111 and Trabelsi v. Belgium (2014) 112 have cemented the significance of the right to rehabilitation and the right to hope, grounded in the human dignity of all prisoners, including life sentence prisoners, 113 although legal uncertainties remain. Although the principle of human dignity and the development of a right to hope has been largely absent from the United States penal system, recent decisions by the Supreme Court, such as Graham v. Florida (2010) 114 and Miller v. Alabama (2012), 115 call into question the legitimacy and appropriateness of LWOP not only for juveniles but for all prisoners, and indicate that the obstacles confronting LWOP reformists in America may not be insurmountable or immune to international practice. Further, the continued expansion of prisoners and increase in prison overcrowding in recent decades has led certain states to introduce initiatives to reduce penalties for non-serious, non-violent crimes, including the release of many repeat offenders who were previously subject to life imprisonment under habitual (“three-strikes”) sentencing laws. 116

Finally, LWOP is not the only type of life sentence that raises significant human rights concerns. It is the indeterminate nature of life imprisonment, and other forms of indefinite detention, that makes it particularly destructive to human dignity. Yet very little is known about different forms of life imprisonment and best practices worldwide. Much more research is needed to probe the full import of such a sentence, its method of implementation, its meaning for the convicted, and when and how life imprisonment, if it is used as a punishment at all, should be imposed and implemented.

The research of Catherine Appleton on life imprisonment is supported by a Leverhulme Trust Research Grant at the School of Law, University of Nottingham, UK.

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In recent years, lifelong detention has received some scholarly attention (see, for example, Appleton and Grøver, 2007 ; Johnson and McGunigall-Smith, 2008 ; Ogletree and Sarat, 2012 ; and van Zyl Smit, 2010 ).

Johnson and McGunigall-Smith (2008 : 328).

In the United States, for example, various states retain some release mechanisms for LWOP inmates, such as executive commutation.

As noted by Johnson and McGunigall-Smith, in the United States “commutations are rare events for persons sentenced to prison, let alone a prison term of life without parole” (2008: 332). In the state of California, for example, not a single one of the 2,500 individuals sentenced to life without parole between 1978 and 2005 had their sentence commuted (Sundby, 2005, cited by Johnson and McGunigall-Smith, 2008 : 332).

Graham v. Florida , 130 S. Ct 2011, 2034 (2010) (citations omitted).

Dolovich (2012 : 99).

Johnson and McGunigall-Smith (2008 : 339).

Research from Stanford University on California prisoners, for example, found that prisoners serving life with the possibility of parole stood an 18 percent chance of being granted parole, and that the rate of release has never risen above 20 percent in the past 30 years (Weisberg et al., 2011, cited in The Sentencing Project, 2013 : 14). See also Petersilia (1999) and Harvard Law Review (2006) .

Or up to 30 years imprisonment for genocide, crimes against humanity, war crimes and gross acts of terrorism (see Zeldin, 2011 ).

See Vinter and Others v. the United Kingdom , Apps Nos. 66069/09, 130/10 and 3896/10, Grand Chamber, ECtHR, July 9, 2013, para. 68.

Vinter and Others v. the United Kingdom .

Life imprisonment has been prohibited, for example, in Brazil, Colombia, El Salvador, Nicaragua, and Venezuala (see Mauer et al., 2004 and Newcomen, 2005).

University of San Francisco (2012 : 25).

European Committee for the Prevention of Torture (CPT) (2012 : para. 33).

Ministry of Justice (2014) .

Van Zyl Smit (2010 : 41).

Penal Reform International (2012 : 6).

20 Personal communication with John Pratt , Professor of Criminology at the Institute of Criminology, Victoria University of Wellington, New Zealand, November 30, 2014 .

408 U.S. 238 (1972).

The Sentencing Project (2013 : 4).

The Sentencing Project (2013 : 13).

The Sentencing Project (2013 : 5). In Louisiana, for example, one in nine prisoners (11.5 percent) is serving LWOP, and in Pennsylvania, 10 percent of the prison population is permanently imprisoned ( American Civil Liberties Union, 2013 : 11).

The Sentencing Project (2013 : 5).

See de la Vega and Leighton (2008) ; Agyepong (2010) ; Ploch (2012) .

See Dünkel and colleagues (2011) .

The Sentencing Project (2014 : 1). According to The Sentencing Project (2014) , nine states have abolished LWOP sentences for child offenders, and in a small number of other states and the District of Columbia, no one is serving the sentence. Two-thirds of juvenile LWOP sentences have been handed down in just five states: California, Florida, Louisiana, Michigan and Pennsylvania (see also de la Vega and Leighton, 2008 ).

The Sentencing Project (2013 : 11). See also Human Rights Watch (2012) and Nellis (2012) .

Graham v. Florida , 130 S. Ct 2011, 2034 (2010).

Miller v. Alabama , 132 S. Ct 2455 (2012).

See Berry (2013) .

Criminal Justice Act 2003, Section 269 and Schedule 21.

American Civil Liberties Union (2013 : 20). See also Capers (2012) ; Ogletree and Sarat (2012) ; The Sentencing Project (2013) .

ACLU (2013 : 2). As noted by ACLU (2013) , 3,278 prisoners is a conservative estimate of the LWOP population for non-violent offences. It does not include, for example, lengthy determinate or so-called ‘de-facto’ life sentences that exceed a convicted person’s life expectancy.

See Miller v. Alabama (2012) at 2471.

Ogletree and Sarat (2012 : 4–5). See also ACLU (2013) ; The Sentencing Project (2013) .

The Sentencing Project (2013 : 15).

This is not the case across all jurisdictions. In R v. Oakes and Others , for example, the Lord Chief Justice of England and Wales makes clear that the primary justification for LWOP is the heinousness of the crime that has been committed. Lord Judge explained that, “the whole life order … 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 appropriate: but only then. It is not a mandatory or automatic or minimum sentence” ( R v. Oakes and Others [2012] ECWA Crim 2435, para. 29).

Blair (1994 : 198).

See Wright (1990) ; Harvard Law Review (2006) .

For discussion on the implementation of “truth-in-sentencing” laws, see, for example, Kern (1995) ; Ditton and Wilson (1999) ; and Peterselia (1999) .

Brodheim (2011) .

Home Office (2007), cited in Hodgkinson et al. (2009 : 24).

See, for example, Home Office (1997) ; Marquart and Sorenson (1997) ; Hood and Shute (2000) and Mauer et al. (2004) .

As the warden of Louisiana’s Angola Prison has stated, most of his aging charges serving LWOP have long since gone through “criminal menopause,” cited in Abramsky (2004) . Indeed, researchers have persistently found that age is one of the most important predictors of criminality (see, for example, Laub and Sampson, 2003 ). See also Appleton (2010) for an exploration of the process of desistance for a group of released life-sentenced offenders in England and Wales.

Angelotti and Wycoff (2010) .

The average cost of maintaining an aging prisoner in the United States has been estimated to be at least $69,000 a year ( Maur et al., 2004 : 25).

See Vera Institute for Justice (2010) .

See, for example, Flanagan (1981) ; Johnson and Dobranska (2005) ; Johnson and McGunigall-Smith (2008) .

Stewart and Lieberman (1982 : 16). See also Bland (2014) .

For example, in a letter to a national newspaper, one LWOP prisoner in the United Kingdom stated that his whole life order had given him “an invisible licence that said I can breach any laws I want” after he had reportedly stabbed another prisoner in the eye using the sharpened handle of a toilet brush (see Hattenstone and Allison, 2012).

Cited in Bland (2014) .

As Von Hirsch has previously observed: “If one asks how severely a wrongdoer deserves to be punished, a familiar principle comes to mind: Severity of punishment should be commensurate with the seriousness of the wrong…. Disproportionate penalties are undeserved—severe sanctions for minor wrongs or vice versa” (1976: 66).

In the last decade in Georgia, for example, about 60 percent of offenders sentenced to LWOP were convicted of murder. The other 40 percent were convicted of kidnapping, armed robbery, sex crimes, drug crimes, and other crimes, including shoplifting (see The New York Times, 2011 ).

The Sentencing Project has reported that “While 47.2 percent of the lifer population is African American, 58 percent of LWOP prisoners are African American, reaching at least two thirds of the LWOP population in seven states” (2013:10).

Harvard Law Review (2006 : 1838).

Bedau (2004 : 189).

Death Penalty Information Center (2010) .

See also Wright (1990) .

Bedau (1997 : 87). See also Sheleff (1987) ; Appleton and Grøver (2007) .

For example, a survey carried out by Wright (1991) among death-row inmates in Tennessee found that LWOP was perceived by the majority of prisoners to be a harsher punishment than death. See also Simon (2012a) and Franchetti (2014) .

Beccaria (1965 [1764]). For an assessment of the current relevance of Cesare Beccaria’s On Crimes and Punishment (in the 250th year since its publication), see Ferrajoli (2014) .

Durlauf and Nagin (2011: 13–54), cited in Gottschalk (2012 : 235).

Gottschalk (2012 : 235).

Article 10(1) of the ICCPR.

Office of the United Nations High Commissioner for Human Rights (1992) General Comment 21, para. 10.

Article 110(3) of the Rome Statute of the International Criminal Court.

Article 513 of the Cambodia Penal Code.

Council of Europe (1976) Resolution 76(2) on the Treatment of Long-term Prisoners, February 17, 1976, para. 76.

Council of Europe (1976) Resolution 76(2), para. 9.

Council of Europe (2003) Recommendation (2003) 22, September 24, 2003, para. 4a.

Cited in Vinter and Others v. the United Kingdom , para. 62.

That “consideration should be given to the diversity of personal characteristics to be found among life sentence and long-term prisoners and account taken of them to make individual plans for the implementation of the sentence” ( Council of Europe, Recommendation (2003) 23, October 9, 2003, para. 3).

That “prison life should be arranged so as to approximate as closely as possible to the realities of life in the community” ( Council of Europe, Recommendation (2003) 23, October 9, 2003, para. 4).

That “individual planning for the management of the prisoner’s life or long-term sentence should aim at securing progressive movement through the prison system” ( Council of Europe, Recommendation (2003) 23, October 9, 2003, para. 8).

Similarly, the Committee of Ministers Recommendation on Dangerous Offenders, Recommendation (2014) 3, February 19, 2014, states that the risk management of dangerous offenders should “have the long-term aim of their safe reintegration into the community … This should involve an individual plan that contains a staged process of rehabilitation through appropriate intervention” (para. 6). Furthermore, the European Prison Rules, promulgated by Recommendation (2006)2, January 11, 2006, also make clear the object of the regime for all sentenced prisoners, including life and long-term prisoners, is to enable them to live a responsible and crime-free life: “A systematic programme of education, including skills training, with the objective of improving prisoners’ overall level of education as well as their prospects of leading a responsible and crime-free life, shall be a key part of regimes for sentenced prisoners” (para. 106.1). It continues, “In the case of those prisoners with longer sentences in particular, steps shall be taken to ensure a gradual return to life in free society” (para. 107.2).

Council of Europe (2003) Recommendation (2003) 23, October 9, 2003, para. 21.

CPT (2007 : 3).

CPT (2007 : 5).

CPT (2007 : 10).

See Kafkaris v. Cyprus , App. No. 21906/04, ECtHR, February 12, 2008, para. 82.

BVerfGE 45 187. For a detailed discussion of this ruling, see van Zyl Smit (2002) . LWOP has also been prohibited on the same grounds as a form of cruel, inhuman and degrading punishment by the Supreme or High Court in Mexico and Namibia (see van Zyl Smit, 2005 ).

Vinter and Others v. the United Kingdom , para. 119.

See Mavronicola (2014) for a full consideration of the contours of the reducibility requirement in the Vinter ruling.

Vinter and Others v. the United Kingdom , para. 122.

Vinter and Others v. the United Kingdom , para. 120.

Kafkaris v. Cyprus , App. No. 21906/04, ECtHR, February 12, 2008.

Harkins and Edwards v. the United Kingdom (2012) Apps. Nos. 9146/07 and 32650/07, ECtHR, January 17, 2012.

For example, in Kafkaris v. Cyprus (2008) App. No. 21906/04, ECtHR, February 12, 2008, the Court stated that “In accordance with Article 3 of the Convention, the State must ensure that a person is detained under conditions which are compatible with respect for his human dignity … ” (para. 96). The Court also found that “the existence of a system providing for consideration of the possibility of release is a factor to be taken into account when assessing the compatibility of a particular life sentence with Article 3” (para. 99). In Harkins and Edwards v. the United Kingdom (2012) Apps. Nos. 9146/07 and 32650/07, ECtHR, January 17, 2012, the Court concluded that, “an Article 3 issue will arise for a mandatory sentence of life imprisonment without the possibility of parole in the same way as for a discretionary life sentence … when it can be shown: (i) that the applicant’s continued imprisonment can no longer be justified on any legitimate penological grounds; and (ii) that the sentence is irreducible de facto and de jure”(para. 138).

Trabelsi v. Belgium , App No. 140/10, ECtHR, September 4, 2014.

The concurring opinion of Judge Power-Forde in Vinter clearly encapsulates the essence of the importance of human dignity and the right to hope: “[W]hat tipped the balance for me in voting with the majority was the Court’s confirmation, in this judgment, that Article 3 encompasses what might be described as ‘the right to hope’ … The judgment recognizes, implicitly, that 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. Long and deserved though their prison sentences may be, they retain the right to hope that, someday, they may have atoned for the wrongs which they have committed. They ought not to be deprived entirely of such hope. To deny them the experience of hope would be to deny a fundamental aspect of their humanity and, to do that, would be degrading.”

See especially van Zyl Smit and colleagues (2014) for a critical discussion of the type of review required to satisfy the principles established by the Court.

For an overview of the emerging critique of Vinter and Trabelsi , see Mavronicola (2014) and Lavrysen (2014) .

See, for example, Barrett (2013) .

Hutchinson v. the United Kingdom , App. No. 57592/08, ECtHR, February 3, 2015.

Hutchinson v. the United Kingdom , para. 25.

See Ö calan v Turkey , App. Nos. 24069/03, 197/04, 6201/06 and 10464/07, March 18, 2014; Magyar v. Hungary , App. No. 73593/10, ECtHR, May 20, 2014; Trabelsi v. Belgium , App. No. 140/10, ECtHR, September 4, 2014; Harakchiev and Tolumov v. Bulgaria , App. Nos. 15018/11 and 61199/12, ECtHR, October 8, 2014 and Bodein v. France , App. No. 40014/10, ECtHR, November 13, 2014.

See Vinter and Others v. the United Kingdom , Apps. Nos. 66069/09, 130/10 and 3896/10, Grand Chamber, ECtHR, July 9, 2013.

Trabelsi v. Belgium , App. No. 140/10, ECtHR, September 4, 2014.

The importance of the preservation of human dignity and the right to hope in contemporary penal systems has been reiterated most clearly in a recent address by Pope Francis to a delegation from the International Association of Penal Law in which he called life imprisonment “a hidden death penalty” ( The Guardian, 2014 ). See also Almenara and van Zyl Smit (2015) .

Graham v. Florida , 130 S. Ct 2011, 2034 (2010). In Graham v. Florida , the Court held that imposing a sentence of LWOP on a juvenile non-homicide offender violates the Eighth Amendment’s prohibition of cruel and unusual punishment. In an opinion by Justice Kennedy, the Court found support for its conclusion in the practices of other nations and the international community. Justice Kennedy observed that the United States, “in continuing to impose life without parole sentences on juveniles who did not commit homicide, … adheres to a sentencing practice rejected the world over.” He further explained that: “The Court has treated the laws and practices of other nations and international agreements as relevant to the Eighth Amendment not because those norms are binding or controlling but because the judgment of the world’s nations that a particular sentencing practice is inconsistent with basic principles of decency demonstrates that the Court’s rationale has respected reasoning to support it.”

Miller v. Alabama , 132 S. Ct 2455 (2012). It is worth noting that in the conclusion to his dissent in Miller v. Alabama , Judge Alito warned: “Future cases may extrapolate from today’s holding, and this process may continue until the majority brings sentencing practices into line with whatever the majority views as truly evolved standards of decency.” More recently, the Supreme Court has announced that the Court will consider whether the ruling in Miller should be applied retrospectively (see Wegman, 2014 ). See also Ploch (2012) for critical discussion on how the concept of human dignity can be used to strengthen the rights of prisoners to rehabilitation in the United States, and Simon (2012b) for discussion on the prominence of the principle of dignity in the United States in several sectors outside of the penal field.

See, for example, St. John and Gerber (2014) .

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