by Barry Mitchell and Julian V. Roberts. Oxford, UK and Portland, Oregon: Hart Publishing. 2012. 196pp. Paperback. $54.72. ISBN: 978-1-84946-228-0.
Reviewed by Randolph N. Jonakait, New York Law School. Email: rjonakait [at] nyls.edu
Barry Mitchell, Professor of Criminal Law and Criminal Justice at Coventry University, and Julian v. Roberts, Professor of Criminology at the University of Oxford, urge the abolition of the mandatory life sentence for murder in England and Wales. Their book, EXPLORING THE MANDATORY LIFE SENTENCE FOR MURDER, contends that murderers have such varying culpability that more sentencing options should be available, including fixed terms of incarceration.
The core of this clearly-written, short (142 pages of text with 20 pages of appendices) book is new empirical work, the results of a public opinion survey in England and Wales about murder sentences. Mitchell and Roberts, however, traverse preparatory ground. They give a brief history of the punishment for an English murder.
Until a half century ago, the automatic sentence was death by hanging. Reforms in 1957 retained, but narrowed, the death penalty. Even so, according to the authors, the death penalty was increasingly seen as capricious. In 1965, the death penalty was abolished, and mandatory life sentences became required for all murder convictions.
Mitchell and Roberts note that the required sentence does not operate the same for all. Only a small percentage of lifers actually stay in prison until they die. Most are incarcerated for a considerable period and then released under supervision for the rest of their lives. The release date depends first on the minimum sentence imposed by the trial judge, which is set by reference to the seriousness of the offense. Shortly before the end of the minimum term, the Parole Board, with public protection as its chief concern, determines whether a prisoner should actually be released. Any release is supervised, but that supervision may be canceled after four years. Whether under supervision or not, a released murderer can be recalled to prison either for re-offending or for a violation of the terms of release.
Even though convicted murderers do not all serve the same period of incarceration, because all can be recalled to prison for life, the authors see all life sentences as fundamentally the same. They contend that these sentences do not deter others from murder and undermine rehabilitation of those convicted of murder. In addition, Mitchell and Roberts contend that the mandatory life sentence violates a core principle of common-law sentencing, that of proportionality.
Proportionality, however, depends upon community views. Mitchell and Roberts [*133] assert that sentencing practices need to be, at least to some extent, in line with the opinions of the society on whose behalf sentences are imposed. They recognize that perhaps the most robust finding of public opinion surveys about sentencing is that sentences are too lenient, a result that has been found in many countries. In addition, polls show that overwhelmingly poll respondents favor the death penalty or life without parole for murderers. Mitchell and Roberts maintain, however, that while community views should be weighed in enacting sentencing schemes, only informed opinions should be considered, and surveys demonstrate that the public both underestimates the length of sentences given and the times actually served. In addition, criminal justice survey respondents also tend to overestimate crime rates, including that for murder.
Perhaps the most important foundation for Mitchell and Roberts ‘position is that when asked what the sentence should be for a crime such as murder, respondents tend to think of the worst examples of the crime. The authors maintain that by allowing respondent to create their own images of crimes, polls overestimate the support for harsh sentences.
Instead of just asking what should be the sentence for murder, Mitchell and Roberts presented their poll respondents nine murder scenarios based on actual English cases that had resulted in life sentences. These included killings in the course of other serious felonies, such as burglary and robbery; killings that resulted from various confrontations, including those between business partners, lovers, and friends; and the killing of a severely disabled child by a distraught parent. The respondents were asked to select a sentence for each scenario from a range of sentences – fixed terms sentences starting at up to four years to at least thirty years with parole. In addition, the respondents could choose a life sentence without parole. In contrast to polls that just ask what the sentence should be for murder, this survey about specific murders found respondents picking fixed terms more than two-thirds of the time.
Mitchell and Roberts conclude that, when they have more information about particular homicide offenses, people respond less punitively than if asked about generic murder, and often support fixed sentences for many murders. Consequently, they propose three possible sentences for murder: life without parole; life with parole; and fixed terms with parole. The harshest sentence would be applied to those who had the intent to kill and exhibited multiple aggravating factors, which are to be defined in the law. Life with parole would apply to intentional killings without two such aggravating factors or with significant mitigating factors. Fixed terms would apply to murders committed without an intention to kill or for intentional killings with significant mitigation.
The most important aspects of this book, however, may not be the reform proposal, for that has a limited reach. It seeks to eliminate a mandatory life sentence for murder in England and Wales, where only about 200 to 300 people in each recent year have received a life sentence.
Additionally, the authors note that their data about how specific homicides [*134] should be sentenced will not necessarily apply to societies other than England and Wales. When the same murder scenarios were presented in England and Trinidad, for example, the proposed sentences by those polled varied considerably in the two societies. Mitchell and Roberts conclude that there are cross-cultural differences in public preferences for murder sentences.
In addition to cultural differences in assessing how murders should be sentenced, political realities have to affect the likelihood of reforms similar to the ones Mitchell and Roberts advocate. For example, much of the United States has seen a trend not to shorter sentences for murder, but towards life without parole as a replacement or an alternative for the death penalty. The more important issue for many American states is not whether to give fixed terms for murders, but to recognize the cost and other wastes of incarcerating an increasing number of aging prisoners who are to be imprisoned until they die.
Mitchell and Roberts, as part of their reform package, however, do discuss a procedure that American states should consider for amelioration of life without parole. They suggest that those sentenced to this harshest life sentence be afforded a two-step process for supervised release in exceptional cases. First, a jury would decide that a life-without-parole prisoner, who has been incarcerated for a significant time, may be eligible for release. Then the prisoner could leave jail if he could persuade a Parole Board that he no longer constituted a threat to the community. Thus, a representative of the community – a jury – would be the gatekeeper to the application, but parole authorities would still determine future dangerousness.
The most non-parochial significance to this book, however, is what it teaches about collecting public opinion concerning sentencing. The book concedes that societal views should affect criminal punishments, but it demonstrates that the method of collecting this information matters. Simply asking how murderers should be sentenced leads to harsher responses than if respondents give views about more specific homicide scenarios. Previous studies tended to ask only about the generic crime, and thus they overstate the society’s punitive instinct. This book indicates that society desires less lengthy sentences than previous, more simplistic studies suggest.
Copyright 2014 by the author, Randolph N. Jonakait