Ireland has the third highest rate of life-sentence prisoners in Europe. The mandatory nature of sentencing is questionable but what’s the alternative, asks Diarmuid Griffin.
Life imprisonment is on the up. In 2016, one in every nine sentenced prisoners was serving a life sentence.
Curiously, the ever-increasing life sentence prisoner population comes at a time when the overall prison population is decreasing.
There has been a fall in the prison population since 2014, due in part to a more strategic approach to prison policy.
Despite this, there are 213 more life sentence prisoners in custody today than in 2001, an overall increase of 153%.
Recent data released by the Council of Europe showed that Ireland had the third highest rate of life sentence prisoners as a percentage of the overall prison population in Europe.
Why is this happening and should we re-consider the frequency with which we use life imprisonment?
In Ireland, life imprisonment is mandatory for murder. This means that all those convicted of murder are sentenced to life. But there are a range of different types of murder and levels of culpability.
In order to be convicted of murder, an accused person must have intended to kill or cause serious injury. The person who intended to kill might - and perhaps should - be viewed as more culpable than the person who intended to cause serious injury.
Similarly, a murderer motivated by anger or revenge might well be viewed differently from a person who killed an individual who was terminally ill and the action was taken at the victim’s request. Both intended to kill but their purpose was different.
The mandatory nature of the life sentences does not afford the trial judge discretion to incorporate any of these distinctions at sentencing.
The vast majority of life sentence prisoners have been convicted of murder (95%), with the remainder serving discretionary life sentences for sexual offences, manslaughter and attempted murder (5%).
In Europe, Ireland is somewhat of an outlier in its use of a mandatory sentence for murder.
Most countries that have life imprisonment as a sanction only make it available as the maximum penalty to be imposed at the discretion of the judge.
In Sweden, for example, the Supreme Court has made it clear that life imprisonment should only be imposed in the most serious cases of murder.
The lack of discretion available at the sentencing stage when imposing a life sentence is a significant factor in the increase of this population, with an average of 19 life sentence prisoners committed annually from 2001 to 2016.
Life, of course, does not mean life in prison and offenders are often released back into the community having served a period in prison (an average of four were released annually from 2001 to 2016).
This is often a point of confusion to the casual observer - and for good reason. The reality is that a life sentence can mean something different in different cases but the length of time served is determined by parole decision-makers, not the judiciary.
An advisory Parole Board makes recommendations to the Minister for Justice, who ultimately decides at what point an offender is released back into the community.
There are proposals to make the process independent of the Minister under the Parole Bill 2016.
While life sentence prisoners released back into the community in 2016 served an average of 22 years in prison, life sentence prisoners in the 1970s served just 7.5 years on average. It appears that time served for murder can be dependent on the decade in which the person is convicted.
As the goal posts have consistently moved in terms of time served over the last 50 years, there exists real unpredictability as to the meaning of life for murder. There are also inherent difficulties with a parole authority determining sentence length.
Such uncertainty as to time served in prison does not benefit victims or victims’ families, the public or those subject to the sentence.
But is there a better alternative?
It is highly likely that if the life sentence was discretionary rather than mandatory it would be imposed far less frequently. Instead, a determinate sentence for a fixed number of years could be imposed by a trial judge in all but the most exceptional of cases.
This would reflect common practice across many European states and would not necessarily mean that there would be a reduction in time served in prison or that offenders would be subject to less severe sentences.
Lengthy determinate sentences have been imposed for offences outside of murder in recent times, including a 20-year sentence for a serious assault and an 18-year term for sexual offences.
These sentence lengths are not vastly out of step with the average time served by life sentence prisoners over the last decade (although remission also needs to be factored in here).
Trusting the judiciary to impose the appropriate sentence for murder would mean that the life sentence would be used selectively rather than by default. If the aim is to gain control over the growth in life sentence prisoners then reforming the mandatory nature of the life sentence would be the most efficient method of doing so.
Dr Diarmuid Griffin is a lecturer in law at NUI Galway and author of Killing Time: Life Imprisonment and Parole in Ireland.