European Lessons for the United States on Sentence Review
The United States has the highest number of prisoners per capita in the world, with 639 incarcerated people per 100,000 of the national population.[1] While the push for ending mass incarceration often begins with those convicted of low-level drug crimes, experts have increasingly begun to advocate for other means of decarceration, including increased opportunities for sentence review.[2] However, there are more than 55,000 incarcerated people in the United States serving a sentence of life without parole and an additional 44,311 serving “virtual life” sentences of 50 years or more.[3] For people serving life without parole or virtual life sentences, there is no meaningful opportunity for release outside of the faulty executive clemency system. These excessive sentences ignore all potential for rehabilitation, the universally low recidivism rates for people 50 years or older,[4] and the high cost of housing, feeding, and providing medical care for unnecessarily incarcerated people.[5] While these types of sentences are commonplace across the United States, they are non-existent in the 46 member states of the Council of Europe thanks to Vinter and others v. United Kingdom and its progeny.[6]
In 2013, in deciding Vinter, the European Court of Human Rights (the “ECHR”) held that it is a violation of human dignity to deny those sentenced to life all prospect of release or an opportunity for sentence review.[7] The applicants in Vinter were three men who had been convicted of murder in the United Kingdom, where the mandatory sentence for murder is life.[8] While the trial judge was required to set a minimum term of imprisonment for the applicants’ murder convictions, because of special circumstances in each case, “whole life orders” were imposed.[9] The three men alleged that their sentences were inconsistent with Article 3 of the European Convention of Human Rights, which provides that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment.”[10]
Vinter was initially heard by the Fourth Section of the ECHR, which held that no Article 3 challenge could arise until imprisonment was no longer necessary to fulfill the legitimate goals of punishment and deterrence.[11] The Court’s Grand Chamber agreed to rehear the case. While the Grand Chamber recognized that European states largely retain the discretion to fashion appropriate sentence lengths, it also recognized that irreducible life sentences violate Article 3 because grounds for detention may significantly change throughout the course of a long period of incarceration.[12] The Court further noted the support in European and international law for sentence review during the first 25 years of a sentence.[13]
In 2017, the ECHR elaborated on the Vinter holding in Hutchinson v. United Kingdom, acknowledging that sentence review may be conducted by the Secretary of State where that review is conducted pursuant to a provision of the Human Rights Act, which requires the Secretary to comply with the ECHR in making decisions related to life sentences.[14] In these cases, the Secretary of State must provide the reasoning behind its decisions and the decisions are subject to review by domestic courts.[15]
Although Hutchinson is often regarded as a rollback of Vinter, the United States could nonetheless learn a great deal from the ECHR’s reasoning in both cases. While state governors and the President of the United States have the power to commute sentences via the state and federal constitutions, clemency procedures universally fall short of the standards set out in Hutchinson, as there are no written decisions or judicial review mechanisms.[16] Additionally, executives are subject to political pressures and may avoid granting clemency in cases that could invoke attacks from political opponents.[17] Far from the European standard of mandated sentence review, in the United States, there is little to no opportunity for release for the nearly 100,000 incarcerated people held pursuant to life without parole or virtual life sentences. If the United States' federal and state governments aspire for a more humane, rehabilitative, and cost-effective system, they need only look to their European counterparts to find an effective blueprint.
Sophia Lattanzio is a staff member of Fordham International Law Journal Volume XLVI.
[1] John Gramlich, America’s incarceration rate falls to lowest level since 1995, Pew Rsch. Ctr. (Aug. 16, 2021).
[2] See generally Parole and Release, ACLU, https://www.aclu.org/issues/smart-justice/parole-and-release.
[3] Ashley Nellis, No End In Sight: America’s Enduring Reliance on Life Sentences, Sent’g Project (Feb. 17, 2021); Ashley Nellis, Still Life: America’s Increasing Use of Life and Long-Term Sentences, Sent’g Project (May 3, 2017).
[4] Aging Out: Using Compassionate Release to Address the Growth of Aging and Infirm Prison Populations, Vera (Dec. 2017).
[5] Prison spending in 2015, Vera (“[T]he total cost per inmate averaged $33,274 and ranged from a low of $14,780 in Alabama to a high of $69,355 in New York. Eight states—Alaska, California, Connecticut, Massachusetts, New Jersey, New York, Rhode Island, and Vermont—had a cost per inmate above $50,000”).
[6] See generally Vinter v. United Kingdom, App. Nos. 66069/09, 130/10, & 3896/10 (Eur. Ct. H.R. Jan. 17, 2012).
[7] Id. at 28.
[8] Id. at 4-9.
[9] Id.
[10] Id. at 2.
[11] European Court of Human Rights rules that irreducible life sentences violate human dignity, Hum. Rts. L. Ctr..
[12] Vinter v. United Kingdom at 41.
[13] Id. at 43.
[14] EHTHR: U.K. “Whole Life Sentences” Now Compatible with ECHR, Int'l Just. Res. Ctr. (Jan. 23, 2017) .
[15] Id.
[16] See 50-State Comparison: Pardon Policy & Practice, Collateral Consequences Res. Ctr.; Clemency Procedures by State, Death Penalty Info. Ctr.
[17] Rachel E. Barkow, The Politics of Forgiveness: Reconceptualizing Clemency, 21 Fed. Sent’g Rep. 153, 157 (2009) (“The costs of getting a clemency decision wrong—resulting in an individual whose application for clemency was granted then going on to commit another crime, particularly a violent one—are high in this political climate of thirty-second ads and sound bites. Executives will run that risk only if there are corresponding benefits that are greater”).
This is a student blog post and in no way represents the views of the Fordham International Law Journal.