Under the Crime

What is the origin of the life sentence for murder in Britain, and what could be done to improve the What is the origin of the life sentence for murder in Britain, and what could be done to improve the way that such sentences are currently administered? Murder can only be described as the most heinous of all crimes, and as such a callous offence it seemed for centuries both just and fair to punish murderers with the retributive sentence of death.

Through, the years however the penalty of death has been deemed at times unnecessary and on occasion even cruel. Whilst people in mediaeval times justified execution for even the most minor crimes, eighteenth century juries became increasingly disinclined towards convicting those with charges of capital offences. (Home Office (1978: 19)). As these feelings of reluctance spread punishing offenders by death became much less frequent, and was allowed for much fewer offences , and in 1965 Capital Punishment in England was banned altogether.

The abolition of the death penalty called for reinforcement as murderers were still in need of severe chastisement, thus the mandatory life sentence was introduced. The implementation of the life sentence and it's administration gave rise to severe criticism as it brought with it many problems, an example being the lack of distinction between mercy killings and cold blooded murders. It is the exploration of these problems and their possible solutions which will make up the fundamental part of this essay.

This essay will, initially, look at the historical roots of life sentencing by examining punishment through the centuries, it will then go on to give a general account of the arguments for and against capital punishment. The problems with the mandatory life sentence will then be discussed (including issues such as the involvement of politics), followed by an analysis of the possible solutions. Finally this essay will conclude by suggesting the most sensible and realistic moves towards the improvement of the administration of the life sentence in Britain.

The history of imprisonment is extensive, however its use as a maximum penalty is a recent development. [1] The mediaeval thirst for blood and gore meant that the more violent forms of punishment were preferred, such as branding, burning at the stake, decapitation and even mutilation, and prisons were used mainly as a means of holding those offenders awaiting their gruesome fate. During the Tudor period the death penalty was a frequently delivered sentence and between the 17th and 19th century the number of misdemeanours punishable by death had doubled twice, from approximately 50 to 200.

(Home Office 1978: 20) The middle of the 19th century was a pivotal period as it saw the rise of a number of campaigns in favour of the abolition of the death sentence; it seemed that public attitudes were changing as many citizens began to realise that punishing offenders with death for petty crimes was inhumane and produced a high risk of innocent deaths for those who had been convicted erroneously.

This change in public attitude combined with the end of transportation to the colonies (which had, so far been the alternative for capital punishment), and the gradual but inevitable abolition of the death penalty lead to the growing awareness of the importance of finding a suitable alternative. The solution seemed obvious; imprisonment, '… deprivation of liberty… ' (Home Office 1978: 23). A custodial sentence would result in not only the protection of the public but also the possible rehabilitation of the offender.

The question however, which caused much perplexity was no longer what punishment to give, but for how long. By what scale were judges supposed to decide the length of a custodial sentence? The answer to this dates back to a statute passed in 1717 which imposed the first mandatory sentence. Under this act when offenders were transported the period of banishment was a mandatory length of seven years. (Home Office 1978: 21) This Act laid down the foundation of the mandatory sentence, as it was used to guide judges with prison sentences even after transportation was no longer used as punishment.

During the mid twentieth century the topic of debate that was plaguing the minds of society was capital punishment (not necessarily it's abolition, but primarily it's amendment). In November 1948 the Home Secretary, Chuter Ede made public his plans to set up a Royal Commission to discuss the problems of capital punishment in Britain. [2] The terms of reference for the commission stated that the committee members were 'To consider and report whether liability under the criminal law in great Britain to suffer punishment for murder should be limited or modified… ' (Clement Atlee, Prime Minister)[3].

Many abolitionists became perturbed by these terms as they meant that the commission was unable to recommend total abolition. After four years the report was published, it made three main recommendations: a) It should be up to the jury to decide whether there were any mitigating circumstances during trial; b) the M'Naghten rules[4] should be altered so that it is up to the jury to rule insanity; c) the statutory age limit for which a person is punishable by death should be increased from 18 to 21. The report was criticized and it was commented that looking at the recommendations made in the report it appeared that the only way of '…

limiting or modifying.. ' capital punishment was by expanding the discretion of juries. The criticisers of the report believed that as any alterations in the system would only make minimal improvements, the real issue was whether to abolish or retain capital punishment and in 1955 the National Campaign for the Abolition of Capital Punishment was set up. There is an inordinate amount of material which has been published on the debate for and against Capital Punishment and I will therefore briefly summarise the main arguments.

Those in favour in favour of the death penalty will inevitably argue parallel with the theory of retribution ('just deserts') that someone who kills should be killed themselves; "Whosoever sheds man's blood, by man shall his blood be shed"[5] (Genesis 9:6). On the other hand the abolitionist will retaliate by putting forward the notion that innocent people may be wrongfully hung. This is an particularly valid opinion owing to the fact that many people would prefer to see a few offenders walking the streets rather than a few innocent people dead.

Opposing this again are the retentionists who believe public safety to be the most important issue and the death penalty to be the most effective way to ensure this. However, research has shown that the majority of murderers kill for a personal purpose rather than randomly and are therefore unlikely to re-offend. Some even share the view that capital punishment is hypocritical because punishing with death differs only narrowly (by moral standards) from murder itself. This sets an appalling example and is even against many religions whose belief is that G/d is the only person who should have the decision to take life, not the State.

Bearing all this in mind, one is lead to pose the question; what sort of person would want to be a hangman and bear the brunt of so many moral and religious issues? The Government at the time (Mid 50's) was greatly in favour of the death sentence (partly because the only acceptable alternative was a life sentence which appeared to have many disadvantages) and in an attempt , mainly to block a Bill which was trying to be passed by the abolitionists, the Homicide Act 1957 was finally passed. This bill altered the nature of punishment for murders while retaining the death penalty for certain Capital crimes.

The Act's main purpose was to 'limit the scope of Capital Punishment' (Queen Elizabeth). In spite of the perceived problems with a life sentence ( which I will detail later) the Act did in fact produce a mandatory life sentence for specific types of murder and, so we finally see the beginning of the life sentence in it's modern form as we know it today. As previously mentioned the Homicide Act 1957 was in part a political 'trick' to prevent the abolition of Capital Punishment, but the abolitionists, lead primarily by Sydney Silverman[6], were not ready to surrender.

In 1964 Sydney Silverman presented the Murder (Abolition of the Death Penalty) Bill to the House of Commons. After a tiresome period of debates in both the Commons and the Lords, and a great number of amendments, on the 8th November 1965 Silverman's Bill received the Royal Assent and was passed. During one of the committee stages an amendment was made which limited the Act to a five year period rather than it being permanent. At the end of this trial period the Act was again brought forward for debate in both Houses.

It was noted that during the experimental five years (1965-1969) the lifer population in prisons had increased by approximately four hundred. (Cullen and Newell) It was realised that a mandatory life sentence was going to place a heavy financial burden on the state, a burden which had not been predicted. In spite of the aforementioned it seemed that the overall majority did not want to see the return of the death penalty and following another lengthy parliamentary debate the Act was made permanent. The Lord Chancellor, Gerald Gardiner expressed his view that '…

human beings who were not infallible ought not to choose a form of punishment that was irrevocable. ' (Block and Hostettler) The origin of the life sentence has now been described but it is of equal importance to view it in it's modern form. In order to do this in full it is necessary to look both at the different forms it may take when being passed as a sentence in court (discretionary or mandatory), and it's structure. According to Cullen and Newell a life sentence in Britain can be delivered in three different ways. Persons aged 21 and over who are convicted of murder will receive life imprisonment as this is the mandatory sentence.

For certain other serious offences the judge has the discretion to impose a life sentence if he feels it is necessary. The discretionary life sentence was developed in the 1950's as a from of preventative detention where a longer sentence than was usual for a crime was given in order to protect the public from an offender who was believed to be a menace to society. The crimes which carry a discretionary maximum sentence are; manslaughter, robbery, arson, rape, kidnapping, and causing an explosion. The third way in which a judge may impose a life sentence is under the 'Two Strikes' rule.

This law was imitated from the American version, 'Three Strikes and your out' in which an offender who commits a third offence (no matter how trivial) receives a life sentence. Under the Crime (sentences) Act 1997 a person who commits a second serious offence is given 'life'. Although the British 'Two Strikes' seems far more sensible than the American 'Three Strikes' as it is aimed only at serious, harmful criminals, it remains to be one of the most controversial pieces of legislation. Although the 'Two Strikes' rule successfully adheres to the issue of public protection it fails to account for any other aspect.

This law has and still is causing an upward surge in the prison population therefore adding to the already existing problems of overcrowding and lack of funding. The 'Two Strikes' principle can be seen as ironic: surely if the aim of 'Two Strikes' is to put a stop to re- offenders then it should apply to crimes such as car theft, which although are less serious, are often repeated again and again. Perhaps a piece of legislation could be introduced along the lines of this rule but to a lesser degree. For example traffic offenders committing their second offence should be band from driving.