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 explicitly sentenced to die in prison, to more indeterminate sentences in which at the time of sentencing it is not clear how long the person will spend in prison.
What all of these sentences have in common 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.
Understandably a lot of campaigning efforts against inhuman sentencing of children have focused on the death penalty and life imprisonment without parole. But this means other forms of inhuman sentencing have been ignored. We are concerned that as replacements for the death penalty and life without parole, States are handing out lengthy sentences to children, including where they are likely to die in prison, but are escaping international condemnation.
We look not only at explicit life sentences (with or without the possibility of parole) but also other forms that could effectively equal the same thing. It is simply not good enough for State to replace one inhuman sentence with another.
Human rights standards
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. And 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. 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.
Life in the European Union*
This report reviews the laws and practices of the States within the European Union with regards to life imprisonment of children; that is all persons under 18 years of age. Where official information is available on how many children are affected by the relevant sentences, this has been included, and where government figures are not maintained, this too is highlighted. For the purposes of this report, “life imprisonment” has been defined to include a variety of types of sentence under which it is possible for a person to be legally detained for the rest of his or her natural life for an offence committed whilst under the age of 18 years.
Life in the Commonwealth
This report focuses 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.
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. Twenty-seven 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. Twenty-six 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.
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.
*This report was funded by the European Union.
