Life Imprisonment: A Global Human Rights Analysis by Dirk van Zyl Smit & Catherine Appleton

Abstract

Reviewed by: Life Imprisonment: A Global Human Rights Analysis by Dirk van Zyl Smit & Catherine Appleton Roger S. Clark (bio) Dirk van Zyl Smit & Catherine Appleton, Life Imprisonment: A Global Human Rights Analysis (Harvard University Press, 2019), ISBN 9780674980662, 447 pages. I. INTRODUCTION At a couple of random times in my professional life, I have, as a matter of drafting, confronted a human rights issue involving life imprisonment. These experiences whetted my appetite for more information on the general issue. Dirk van Zyl Smit and Catherine Appleton1 have assuaged that appetite beyond my wildest dreams. With the plethora of factual and legal ammunition of their book in hand, I would have felt far more comfortable on these random occasions. The first of my experiences came in the late 1980s, when I was a member of the former UN Committee on Crime Prevention and Control during the development of the UN Model Treaty on Extradition.2 We devised an optional ground for extradition refusal wherein "the offence for which extradition is requested carries the death penalty under the law of the requesting State, unless that State gives such assurance as the requested State considers sufficient that the death penalty will not be imposed, or, if imposed, will not be carried out."3 Some [End Page 1022] determined person in the group insisted on a footnote to the model to the effect that "[s]ome countries may wish to apply the same restriction to the imposition of a life, or indeterminate, sentence."4 I remember it being explained that, while life imprisonment (even without the possibility of parole) was taken for granted (at least for homicide) in places like the United Kingdom and the United States, this was not the case in several European and Latin American jurisdictions, where objections had both constitutional and nascent human rights dimensions. Portugal was given as an example,5 and I discovered around then that Venezuela had insisted on including an extradition-denying exclusion on grounds both of the death penalty and life imprisonment in its 1922 Extradition Treaty with the United States6 (I know of none earlier than that). The second occasion on which I was faced with addressing life imprisonment was in negotiating the penalties provision of the Rome Statute of the International Criminal Court (ICC). The relevant language as finally adopted provides for "(a) [i]mprisonment for a specified number of years, which may not exceed a maximum of 30 years; or (b) [a] term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person."7 The compromise here is apparent. For the most part, sentences must be for a fixed term of years, with a maximum of thirty. States like Portugal could live with this. However, there were still States who wanted something more symbolically ultimate for the worst of the worst, especially some who had reluctantly come to accept that there would be no death penalty for offenses within the Court's jurisdiction. They insisted on including life imprisonment, albeit with a strong hint ("justified by the extreme gravity of the crime and the individual circumstances of the convicted person"8) that it would not be the norm. Unlike domestic sentencing structures, where sentencing [End Page 1023] rules are typically provided for each offense, the structure of the ICC applies across the board from serial génocidaires to relatively low-level war criminals that would not deserve the maximum. Inevitably, a rich debate took place about the definition of life imprisonment and what it means in practice across the globe. Does it mean that the convicted person will spend the remaining years of life incarcerated with no possibility of relief, apart perhaps from some mitigation by the executive branch? Does it mean that a certain minimum number of years must elapse before someone (e.g., a judge or an agency) may make a discretionary determination in favor of release? What is to be made of a sentence of, perhaps, 100 years, which no human is likely able to live beyond?9 Is such a term of years in reality a whole life sentence? How does this translate to an...