INHUMAN SENTENCING: Life imprisonment of children in the Commonwealth

Summary: Report on life imprisonment sentences for children in the Commonwealth States.

In 2010 CRIN, together with other partners, launched a campaign for the prohibition of inhuman sentencing of children- defined to include sentences of death, life imprisonment and corporal punishment.

This report focusses on sentences of life imprisonment in the Commonwealth for three reasons: first, the prevalence of life imprisonment of children is particularly high among the Commonwealth States; second, the shared legal history of the Commonwealth has resulted in common practices; and third, to highlight a form of inhuman sentencing of children that has been hidden by the focus on the death penalty as the most extreme punishment.

Life imprisonment sentences cover a diverse range of practices, from the most severe form of life imprisonment without parole (LWOP), in which a person is sentenced to die in prison so long as their sentence stands, to more indeterminate sentences in which at the time of sentencing it is not clear how long the sentenced person will spend in prison. What all of these sentences have in common, however, is that at the time the sentence is passed, a person is liable to be detained for the rest of his or her natural life.

The Convention on the Rights of the Child (CRC) prohibits life imprisonment without the possibility of parole, a practice which outside the United States has now become very rare. The US Supreme court case of Miller v. Alabama is set to make the sentence now rarer, since its prohibition of mandatory life sentence without the possibility of parole for persons under 18 will lead to reviews for those who have been so sentenced. Belize too has outlawed life sentences without the possibility of parole on the basis that they are inconsistent with its constitutional prohibition on torture, inhuman or degrading punishment. Similarly the European Court of Human Rights has ruled that “irreducible life sentences”, in which in law and practice a sentenced person faces no real prospect of release, are incompatible with the European Convention on Human Rights.

This focus on the worst forms of the sentence, however, has disguised the widespread practice of less severe or overt forms of life imprisonment. Of the 54 States within the Commonwealth, CRIN's research has found that 45 still allow for life imprisonment of persons who were under 18 at the time they committed the offence. Any sentence which could lead to a child spending the rest of his or her life in prison, plainly violates the CRC, which prohibits “torture or other cruel, inhuman or degrading treatment or punishment” and requires that children in conflict with the law are treated “in a manner consistent with the promotion of the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society”.

Progress has also been made in outlawing the death penalty for children, a practice now very rare internationally, but in its place many states have introduced compulsory life sentences, another form of cruel or inhuman punishment. 27 Commonwealth States, expressly instituted measures to ensure that children who would otherwise have been sentenced to death would be eligible instead to die in prison.

The growth of indeterminate sentences has blurred the borders between life sentences and other terms of imprisonment. 26 Commonwealth States permit sentences of detention at the pleasure of the courts or the executive, a sentence which allows for the indefinite lawful detention of a person without the certainty that can come with traditional life sentence. Studies into this practice in the United Kingdom have identified an increase in mental health problems for those subject to indeterminate sentences compared to those serving traditional terms of life, indicating the harm that can be inflicted by the uncertainty of apparently lesser sentences.

Only five Commonwealth States have explicitly prohibited life imprisonment of children; these examples show how juvenile justice need not rely on harsh punitive sentences to combat the problems of youth crime. When the Convention on the Rights of the Child was drafted more than two decades ago, NGOs pressed for the prohibition of life imprisonment outright, and were forced to settle for a prohibition on LWOP in the name of consensus. CRIN does not believe, however, that the focus should be on eliminating the worst of the worst practices, or establishing average practices in juvenile justice, but on establishing a system of justice that fully respects the rights of children.

CRIN is concerned that States are handing out lengthy sentences to children, yet international condemnation is limited to life imprisonment without parole and the death penalty. It is essential- indeed long overdue- to widen the focus and challenge any sentence under which, at the time it is passed, a child is liable to be detained for the rest of his or her natural life. CRIN, with other commentators, believes that the only justification for the detention of a child should be that the child has been assessed as posing a serious risk to the public safety. Courts should only be able to authorise a short maximum period of detention after which the presumption of release from detention would place the onus on the state to prove that considerations of public safety justify another short period of detention. The same principles should apply to pre-trial detention.

This briefing serves to highlight the prevalence and plurality of laws permitting life imprisonment of children, laws that potentially condemn children to die in prison, and hopes to lead to reviews of the sentencing of children to ensure that they are fully compliant with the CRC and other instruments. CRIN believes that life imprisonment, of any type, does not have a place in juvenile justice.

pdf: Setencing.pdf

Please note that these reports are hosted by CRIN as a resource for Child Rights campaigners, researchers and other interested parties. Unless otherwise stated, they are not the work of CRIN and their inclusion in our database does not necessarily signify endorsement or agreement with their content by CRIN.