We need a proper debate on life sentences – before it's too late
Published 17/07/2014 | 02:30
Perhaps the most practical approach to sentencing was that adopted by Brendan Behan who observed: "I was court-martialled in my absence, and sentenced to death in my absence, so I said they could shoot me in my absence."
Following the complete abolition of the death penalty in Ireland in 1990, a life sentence – such as that imposed on the murderers of Limerick businessman Roy Collins earlier this week – is the most severe punishment that can be handed down.
A life sentence is mandatory for certain crimes such as murder and judges have no discretion, regardless of the circumstances.
Such mandatory sentences are sometimes criticised for their inherent inflexibility which makes it difficult at a sentence hearing to properly differentiate between a serial killer on the one hand and the perpetrator of a so-called "mercy killing" on the other.
There are also a range of other offences for which a trial judge has discretion to impose a life sentence including manslaughter or rape.
The phrase "life sentence" is, however, misleading since only a small minority of those who receive one will actually die in prison.
At some point in their sentence, most lifers will be granted "temporary release", which is commonly called parole.
Thus life does not mean life.
Unless such a prisoner commits a further offence or fails to fulfil any release conditions then they can expect to remain free indefinitely.
Their life sentence does not disappear since at any time they can be recalled to prison to serve the rest of it.
On any given day of the week there are many "lifers" freely walking the streets. The decision to grant such temporary release starts with a review of the case by the Parole Board usually after a minimum of seven years. Following each successive review, the Board can make a recommendation to the Justice Minister but the decision to release rests solely with the minister.
As a result of this, the concept of a life sentence is an inherently uncertain one.
Normally a convicted person is sentenced to a fixed term of imprisonment and will know their likely release date allowing for factors such as remission for good behaviour that can reduce a sentence by up to a quarter.
But a person serving life will have no such comfort and will be entirely unaware when, if ever, they might be released.
The victims of that person are also left in a similar state of uncertainty.
The average length of life sentences has fluctuated dramatically upwards over time. Research by the Irish Prison Service showed the average jail served by a life prisoner before release between 2005 and 2013 was 18 years compared to 7.5 years from 1975 to 1984 and 12 years in the following decade.
This is probably because Ministers for Justice have become more concerned not to appear soft in the eyes of the electorate.
One way of improving the current situation is to implement a recommendation of the Law Reform Commission in 2012 to introduce laws allowing judges to set minimum terms, known as tariffs.
The tariff system, which affords some certainty for lifers and victims alike, is already used in England and Northern Ireland.
A judge who has presided over both the trial and sentence hearing is much more likely to reach an equitable decision than a Minister and Parole Board considering the question afresh many years later.
Indeed, when one considers the separation of powers it is arguably inappropriate that a politician should have any role in determining the length of a prison sentence.
The natural tendency for politicians is to make the most popular decision which may not always be the fairest one, but this is at odds with Article 5 of the European Convention of Human Rights which guarantees a prisoner a right to have their sentence reviewed by a court or "court like" body.
The United Kingdom has had a number of whole life tariffs condemned by the judges in Strasbourg.
So far the Irish system has managed to avoid the same fate.
But it can only be a matter of time before Strasbourg holds us to account.
It would be better that we have a proper debate about life sentences now, before waiting for judges sitting in another country to tell us what to do.
James McDermott is a barrister and law lecturer at University College Dublin.