General Issues Concerning Life Imprisonment

Abstract

This chapter will explore issues surrounding life imprisonment. These include the notion of life imprisonment, i.e., what life imprisonment is. The notion of life imprisonment can refer to a penal measure imprisoning the inmate for a certain crime for the rest of the inmate’s life, or until he or she is allowed to be released by law. However, only in a case in which the convict is imprisoned for the rest of his or her life, such as occurs with life imprisonment without possibility of release (hereinafter: LWOR), can this be termed life imprisonment in the real sense of the term; in a case in which the convict is sentenced to life imprisonment but will be released after a certain time on parole or commutation or other arrangement, life imprisonment is, in fact, a kind of indefinite-term imprisonment or long-term imprisonment, and is, by its very nature, indeterminate. Following this, this chapter will explore the characteristics of life imprisonment, which include lengthy incarceration, and where its severity ranks only second to the death penalty, and when it is only used for the most serious crimes. Next, the chapter will analyse the forms of life imprisonment, which include life imprisonment without release and with the possibility of release, life imprisonment with work and without work, as well as mandatory life imprisonment and discretionary life imprisonment. This chapter will also explore the effects of life imprisonment, which include the effects on the inmate, on the victims and on the public. Following this, the chapter will analyse the life imprisonment system in China and various other countries, including some abolitionist European Union (hereinafter: EU) member states, in retentionist states such as Japan and Singapore, and also long term imprisonment in Norway and Portugal. This discussion will include the prevalence of life imprisonment (or long-term imprisonment) in the related states’ Criminal Codes (or Penal Codes), the conditions for passing a sentence of life imprisonment (or long-term imprisonment), and the termination mechanisms for life imprisonment (or long-term imprisonment). In addition, this chapter will focus on the international documents regarding life imprisonment.

5.1 The Notion of Life Imprisonment

In Chinese the term life imprisonment (Wuqi Tuxing, 无期徒刑); semantically, “wuqi (无期)”, means “indefinite term”; however, according to the official translation of the Criminal Law of China, it is “life imprisonment”¹). In English it is also referred to as a lifelong sentence,² a life sentence, lifelong imprisonment,³ lifelong incarceration,⁴ or life incarceration. The term refers to a kind of severe punishment widely and generally used by many countries around the world. However, “the term of ‘life imprisonment’ has divergent meanings in various countries.”⁵ Some Western scholars argue that “it consists in the convict’s deprivation of freedom for the rest of his life”.⁶ According to the Wikipedia website, “life imprisonment is any sentence of imprisonment for a crime under which convicted persons are to remain in prison for the rest of their lives or until paroled.”⁷ Some Chinese scholars have tried to explain the notion of life imprisonment based on its semantics and argued that, in Chinese, “wuqi (无期)” means that the time is indeterminate, and “tuxing (徒刑)” refers to a punishment that forces the inmate to work; consequently, life imprisonment is a kind of “punishment without definite duration of time or forever, under which the inmates are compelled to work”.⁸

However, in order to make the notion of life imprisonment clear, it cannot be defined according to semantics, but rather on the basis of criminal laws as legal documents. Therefore, the provisions of some states will be taken as examples in the following paragraph. The Austrian Penal Code provides that “life imprisonment is a period of indefinite detention, but the inmate can be eligible for parole if he or she satisfies requirements stipulated by the law”⁹; the Criminal Code of the Republic of Bulgaria provides that imprisonment for life shall be the compulsory isolation of a convict for the remaining portion of the convict’s life at penitentiary institutions to serve a punishment by deprivation of liberty¹⁰; according to the Criminal Code of Cyprus, life imprisonment is for the remainder of the biological existence of the convicted person and not for twenty years¹¹; the Hungarian Criminal Code provides that life imprisonment shall be served in a penitentiary, and when deciding to impose it, the court shall specify the earliest date of eligibility for parole, or shall preclude any eligibility for parole¹²; the Penal Code of Lithuania provides that convicted persons shall serve the penalty of life imprisonment in a prison, but may be transferred to a house of correction after serving 10 years imprisonment¹³; in Sweden, “life imprisonment is an indeterminate sentence which can theoretically last for the remainder of a person’s nature life, but it may be commuted to fixed term imprisonment.”¹⁴ The above examples show various European states’ provisions on life imprisonment. We also need to take some Asian states as examples, i.e., under the Penal Code of Singapore, imprisonment for life “in relation to any prescribed punishment means imprisonment for the duration of a person’s natural life”¹⁵; in the Penal Code of Japan there is no any special clause to provide the notion of life imprisonment like that provided in the Penal Code of Singapore, but two types of imprisonment for life are provided, i.e. imprisonment for life with work and imprisonment for life without work¹⁶; similarly, the Criminal Law of China does not explicitly explain what life imprisonment is in the relevant provision, but it provides that “any criminal who is sentenced to life imprisonment shall serve his sentence in prison or another place for the execution [of the sentence]; anyone who is able to work shall do so to accept education and reform through labour”¹⁷; the Penal Code of Vietnam provides that “life imprisonment is the penalty of indefinite imprisonment applicable to persons who commit particularly serious crimes, but not so as to warrant being sentenced to death.”¹⁸ According to the Indian Penal Code, imprisonment for life is construed as “transportation for life”.¹⁹ Even though we cannot find a clause providing for life imprisonment in the Criminal Code of the USA as in other states’ codes, we know that there is life imprisonment without possibility of parole in the criminal justice system in America, and the convict will be imprisoned in prison or jail for the rest of his or her life.

Based upon the brief summary above on the life imprisonment clauses provided in some states’ Criminal Laws or Penal Codes, as the argument made by the Crime Prevention and Criminal Justice Branch of United Nations points out, “the term ‘life imprisonment’ has divergent meanings in various countries; states impose life sentences for different ranges of offenses; and states that release life-sentence prisoners do it in a variety of ways.”²⁰ Meanwhile, we can see that life imprisonment, in fact, includes two basic concepts, i.e., the concept of time or duration and that of space. As regards duration, the punishment emphasizes that the sentence should be the convict’s “life”, i.e. it is life-long, which generally “denotes the life of a human being.”²¹ In fact, the term “life” means the rest of the convict’s life or an indefinite term until he or she is released from the prison or dies there. In terms of space, it emphasizes that the punishment should be in prison, where the convict is reformed or educated or where the convict is locked away from society.²² From this perspective, Professor Joshua argues that it is a kind of “‘social banishment’, which means that a system of punishment has decided that the offender is an ‘other’ who must be excluded ‘from society’”,²³ and he argues that there are four formulas, i.e., life in prison without parole, a sentence lengthy enough to constitute a stage of an offender’s life, collateral consequences systematic and substantial enough to constitute an analogue to civil death, and capital punishment.²⁴

According to the aforesaid analysis, the notion of life imprisonment can refer to a penal measure imprisoning the inmate for a certain crime for the rest of the inmate’s life or until he or she is permitted to be released by law. However, undeniably, only in those cases where the convict is imprisoned in a prison for the rest of his or her life, such as in life imprisonment without possibility of release, can we speak of life imprisonment in the real sense of the term; in cases where the convict is sentenced to life imprisonment but will be released after a certain time on parole or commutation or other arrangement, life imprisonment is, in fact, a kind of indefinite-term imprisonment or long-term imprisonment, sentences which are, “by their very nature, indeterminate.”²⁵ In this case, as some scholars have pointed out “life in prison has never really meant life in prison.”²⁶ However, in some states, such as the USA, an offender can be sentenced to extremely long specific terms of imprisonment,²⁷ or multiple consecutive long terms of imprisonment, and these are deemed de facto life imprisonment sentences because they are so long that the sentence has the practical effect of being a life sentence.²⁸ In fact, extremely long specific terms of imprisonment or multiple consecutive long terms of imprisonment are not de jure life imprisonment terms and are not within the scope of the discussion in this book, even though the offender will spend the rest of their life behind bars. This is because this kind of punishment takes the form of a definite term of imprisonment in the law rather than being a lifetime punishment, and so should have its own terminal system.

5.2 The Characteristics of Life Imprisonment

Based on the notions explained in the preceding section, life imprisonment is, by its nature, a kind of imprisonment measure which isolates the offender from society and protects society and the public from the negative effects caused by the offenders sentenced to this punishment. It is very different from fixed-term imprisonment, the death penalty, or other custodial sentences, chiefly because it has certain special characteristics, described below, i.e. lengthy incarceration, severity, and quarantine.

5.2.1 Lengthy Incarceration

Lengthy incarceration is a by far the most obvious feature of life imprisonment, and the other characteristics derive from it. If the offender is sentenced to life imprisonment, and if, according to the law, he or she cannot be released, the incarceration term of his punishment should be the rest of his or her lifetime. This is the reason why it is named “life imprisonment”, and consequently some scholars deem this kind of life imprisonment “a different death penalty”,²⁹ because it deprives the prisoner of life-long freedom, and ensures that he or she will die naturally in prison as a consequence. Just as with lengthy incarceration in general, life imprisonment without possibility of release is criticized by many scholars and is deemed a form of torture, and a brutal and inhuman punishment. However, some states’ criminal law codes provide for life imprisonment without possibility of release; for instance, in the USA, life imprisonment without parole is provided for and applied in the federal legal system and in judicial practice; in England and Wales, life imprisonment and parole systems are provided for in the penal system, but certain categories of prisoners are not eligible for release³⁰; in Turkey, there are two kinds of life imprisonment, i.e. life imprisonment and aggravated life imprisonment,³¹ the latter lasts until the death of the convict and is enforced under a strict security regime as defined in law and legislation³²; in China, for serious corruption crimes, if the offender is given the death penalty with a reprieve and this is commuted to life imprisonment after a two year suspension, neither parole nor commutation is granted to the convict.³³ In addition to cases where the convict serves the rest of his or her life in prison, which obviously represent the extremely lengthy incarceration of life imprisonment, life imprisonment with an indefinite term can also mean lengthy incarceration. In another word, cases in which the convict is given life imprisonment and will be released on parole or commutation after he or she has served a certain number of years in prison can also embody the lengthy incarceration of life imprisonment. For instance, according to the Hungarian Criminal Code, if the court has not precluded eligibility for parole with a sentence of life imprisonment, the date of release on parole can be forty years³⁴; this period (forty years) is also the maximum limited effective sentence to be served by a convict if he or she has been found guilty of two or more felonies and at least two of them are punishment by law with a prison sentence exceeding twenty years.³⁵ This is an extremely lengthy incarceration, effectively life imprisonment. However, most countries Criminal Law codes generally allow the convict to request parole and/or commutation after serving around 25 years, and some countries’ laws allow the court to grant the convict parole after serving in prison for about 15 years, or even 10 years, as in the Republic of Korea.³⁶ The lengthy incarceration aspect of life imprisonment is its primary and most important character, and also creates the severity of this punishment.

5.2.2 In Its Severity Life Imprisonment Ranks Only Second to the Death Penalty

Life imprisonment is almost the most severe punishment in the world. Here I use the term “almost” because the death penalty is still provided in some states’ criminal law codes, and so life imprisonment is the second most severe punishment; for abolitionist states, however, life imprisonment has become the most severe punishment. Put another way, in terms of severity, in modern punishments life imprisonment ranks only second to the death penalty. The severity of life imprisonment is, on one hand, chiefly because it deprives the convict of his or her right to freedom for a long time, by putting the convict behind bars for more than a decade, or even for the rest of his or her life. In this sense, life imprisonment does not directly impose physical pain, as corporal punishment does, but brings psychological pain to a convict. Moreover, to a certain extent it limits social survival skills and may even degrade them. On the other hand, generally, if the convict is sentenced to life imprisonment, he or she may be given another supplementary punishment by law. For example, in China, according to Article 57, any criminal who is sentenced to life imprisonment shall be deprived of his political rights for life³⁷; in accordance with Article 113, whoever commits any of the crimes which involve endangering national security may concurrently be sentenced to confiscation of property³⁸; according to Article 141, whoever commits the crime of producing or selling bogus drugs may be sentenced to life imprisonment and a fine.³⁹ However, we must be aware that this phenomenon is chiefly the result of China’s penalty system, which includes both a principal and a supplementary punishment. The latter may be imposed independently of the former, and can thus increase the severity of life imprisonment. Even when there is no other supplementary punishment provided for serious crimes in other states’ criminal law codes, other punishments can also be concurrently imposed on the convict; for instance, under the Penal Code of Singapore, whoever wages war against the Government, or attempts to wage such war, or abets the waging of such war, shall also be fined concurrently if he or she is sentenced to imprisonment for life.⁴⁰ Under Section 43a of the German Criminal Law, the court may, collateral to imprisonment for life, impose payment of a sum of money (a property fine).⁴¹ If the lighter punishment measure is not concurrently imposed on the convict, some conditions are imposed; for instance, according to the Section 10 of Finland’s Criminal Code, a public official, a person elected to a public office or a person who exercises public authority who is sentenced to life imprisonment shall also be dismissed.⁴² In addition, the Netherlands’s Criminal Law provides explicitly that in cases where life imprisonment has been imposed, disqualification from certain rights, confiscation of objects seized and publication of the judgement may be imposed in conjunction with the main sentence.⁴³

5.2.3 Only for the Most Serious Crimes

In the modern punishment system, life imprisonment is one kind of severe form of punishment, and it is provided for the most serious crimes. In retentionist states, taking Japan’s Criminal Punishment as an example, life imprisonment normally serves as an alternative option to the death penalty for certain serious crimes; for instance, according to the Article 77, a ringleader of a group which commits the crime of insurrection shall be punished by death or life imprisonment without work⁴⁴; according to Article 121 of Penal Code of Singapore, whoever commits offenses against the President’s person shall be punished with death, or with imprisonment for life.⁴⁵ In other abolitionist states, like the member states of European Union, life imprisonment is only provided for the most serious crimes, for instance, under the Criminal Code of the Czech Republic, life imprisonment may only be imposed on an offender who has committed an especially serious felony of murder, an especially serious felony of public menace, treason, terrorist attack, genocide, an attack against humanity, cruelty in war, and so on.⁴⁶ Similarly, the Swiss Criminal Code also provides explicitly that lifelong incarceration may be only imposed on the convict who commits murder, intentional homicide, serious assault, robbery, rape, indecent assault, false imprisonment or abduction, hostage-taking, trafficking in human beings, genocide, or a felony under the heading of crimes against humanity or war crimes.⁴⁷

These are the main three characteristics of life imprisonment. From the above analysis, it is clear that the lengthy incarceration which is implicit in life imprisonment determines its severity and its applicable scope, and also distinguishes it from other punishment measures.

5.3 The Forms of Life Imprisonment

Depending on the classification criteria, life imprisonment can be classified into the following main types: life imprisonment with possibility of release (LWPR) and without possibility of release (LWOR), life imprisonment with work and without work, mandatory life imprisonment and discretionary life imprisonment.

5.3.1 LWPR and LWOR

Regarding its means of termination, life imprisonment can be classified as life imprisonment with possibility of release (LWPR) and life imprisonment without release (LWOR). The former, LWPR, is a kind of generally applicable imprisonment, which is provided in many countries’ criminal law codes. It means that the convict can be released from prison after serving a determinate or indeterminate term. It is also referred to as conditional release from life imprisonment by most states’ criminal law codes, although these conditions are very different; some of them are explicitly provided by the criminal law, while for others the judge is authorized to make a decision. In addition, the methods of release are very different, and can include release on parole, probation, commutation, pardon, mercy, amnesty, and suspended execution, and so on. By contrast, LWOR is a kind of lifelong incarceration from which the convict cannot be released. This means the convict has to spend the rest of his or her life behind bars, and is, to a great extent, isolated from normal social life; consequently, this form of punishment has been criticized as “a form of torture that renders death a mercy.”⁴⁸ LWOR is not a generally applicable punishment around the world, and only a few states’ criminal law codes provide for it in their penalty system, including the USA, China, Vietnam, Morocco, Laos, Israel, Indonesia, and so on.

5.3.2 Life Imprisonment with Work and Without Work

“By being forced to work within the institution, the prisoners were trained in a trade, and it was hoped that they would voluntarily flood the labour market when released.”⁴⁹ In contemporary penal systems, prison work is not only carried out with the aim of inflicting punishment, but has also become a way of regulating and controlling prison life, and “become a central mode of carceral power and of penal discipline.”⁵⁰ If life imprisonment, as a type of incarceration punishment, is imposed on the convict, he or she should be forced to work if able to. This requirement is directly or indirectly provided in many state’s criminal law codes and has become one of the convicts’ obligations; for instance, the Swiss Criminal Code provides that “the prison inmate is obliged to work. Wherever possible, the work should be appropriate to his skills, education and training and his interests.”⁵¹ This requirement is also applied to the convict who is sentenced to life imprisonment. China also has a similar provision in its Criminal Law. However, there are some differences, i.e., not all life imprisonment requires the convict to work, even when able to. According to the Japanese Penal Code, life imprisonment can be categorized as life imprisonment with work, which consists of confinement in a penal institution with assigned work, and life imprisonment without work, which consists of confinement in a penal institution.⁵² The gravity of the former is greater than that of the latter.⁵³

5.3.3 Mandatory Life Imprisonment and Discretionary Life Imprisonment

For certain crimes, life imprisonment can be divided into mandatory and discretionary life sentences on the basis of whether it is the sole punishment or an alternative. Mandatory life imprisonment is a sentence which is the only punishment that can be imposed on a convict who commits a certain crime or “a life sentence passed in circumstances where the sentence is fixed by law.”⁵⁴ For instance, in the UK mandatory life imprisonment is the only sentence that can be imposed on a convict who is aged 21 or over if he or she has committed a murder, according to the Criminal Justice Act 2003⁵⁵; according to Article 302 of Turkey’s Criminal Code, if the convict committed an act to place all or part of the territory of the state under the sovereignty of a foreign state or to disrupt the unity of the state or to weaken the independence of the state or to separate part of the territory under the sovereignty of the state, he or she shall be sentenced to a penalty of aggravated life imprisonment.⁵⁶ By contrast, discretionary life imprisonment is a punishment option which may be offered to the judge to make a choice when punishing a certain crime. It is normally provided together with other punishment measures, such as fixed term imprisonment, or the death penalty. For example, according to the Criminal Code of Romania, if a convict has committed aggravated murder, he or she may be punished by life imprisonment or no less than 15 and no more than 25 years of imprisonment, with a ban on the exercise of certain rights.⁵⁷ In another words, the provisions of discretionary life imprisonment give discretionary power to the judge when sentencing, but the provisions regarding mandatory life imprisonment do not leave any sentencing discretion to the judge, i.e., the judge does not have any other option but to give life imprisonment to the convict if the crime committed by the offender and its circumstances satisfy the requirements.

5.4 The Effects of Life Imprisonment

As a type of punishment, life imprisonment has the same, or at least similar, functions and effects to other punishment measures, in particular to incarceration. Generally, the penalty function refers to the social results or effects which are brought by the application of the penalty. Normally, it is considered that the penalty function mainly includes punishing and preventing crime in order to protect the social order, public security, the ruling order, individual rights, and so on. However, with the development of the punishment theory, some scholars believe that the application of the penalty should have learning effects in that it encourages the whole of society to learn the law and use it⁵⁸; and the use of the penalty can make the public believe in the law and make them feel the law is being implemented⁵⁹; furthermore, the use of the penalty should have a restorative effect such that the public can ‘feel’ the law and that their security is effectively protected by the imposition of an appropriate punishment on the offender.⁶⁰ However, these three penalty functions can all be deduced from the basic argument of using punishment to punish and prevent crime and to protect society. It is undeniable that life imprisonment does in fact have the functions mentioned above, which act as general functions. However, this section focuses on the functions and effects which are specific to life imprisonment due to its own special characters, by analyzing them from the perspectives of the convict, the victim and society.

5.4.1 The Effects of Life Imprisonment on the Convict

The effects of life imprisonment on the convict, including the “pains of imprisonment”⁶¹ and the consequences of the incarceration are obvious and clear because the punishment is imposed directly on him or her. There have been studies conducted by American and British scholars attempting to assess the problems of long-term imprisonment⁶²; but there is no unanimity regarding the scope of the effects of life imprisonment on the convict.⁶³ However, as a long-term incarceration, life imprisonment, should, on the one hand, bring many positive effects to the convict, which are also expected by the public and conform to the aims of the punishment. These kinds of positive effects include helping the convicts to recognise their criminal behaviour and lean from their mistakes; helping them to better understand the harm they have done to the victim and society; educating them to respect and obey the law; and then making them into better people by educating them. On the other hand, at the same time, it also has many obvious negative effects on convicts. Generally, the negative effects of life imprisonment on the convict are divided into two main categories, i.e., psychological problems and sociological problems. Life imprisonment puts convicts who have certain similar problems into a limited and sealed place, which isolates the convict from normal society for a long time, which thus brings serious psychological problems and sociological problems. The psychological problems are the most serious and obvious for the convict because they lose their normal social life and their freedom is greatly limited. As some scholars point out, missing freedom, missing their family and the lack of privacy are the most difficult; the lack of autonomy and missing activities/possessions can be categorized as moderately negative in the list of hardships; concerns about their safety will also a serious of problem for them.⁶⁴ Furthermore, a lack of confidence and anxiety about their lives, the loss of the capacity for self-definition,⁶⁵ disappointment and loss of hope regarding their rehabilitation are also very comment problems. A Chinese empirical study shows that depression, helplessness, anxiety, hostility, fear and personal prejudice are all extreme and obvious features of the life of convicts serving long-term incarceration.⁶⁶ In particular, the lack of any sign of release from prison back to society may have a great negative impact on the convict’s mental health. In addition, sociological problems are also serious and obvious effects on long-term prisoners. Long-term incarceration in fact deprives the convict’s rights to liberty as long as he or she is in prison by removing him or her from the society and, to a great extent, cutting his or her contact with the outside world. In this case, the convict will gradually lose any social interaction over a long period. Consequently, long-term prisoners will suffer from isolation, indifference, loss of personal responsibility, and a lack of identity and social skills. Furthermore, an important negative result of long-term incarceration is that the convict is invisibly subject to the stigma of incarceration marking a prisoner or former inmate,⁶⁷ and this inevitably causes an increase in the prejudice the convict is subject to. Consequently, to a great extent, even though they are released from prison after a number of years in prison, they “are less likely to be hired, have slower wage growth, have more unstable relationships, and have higher rates of illness.”⁶⁸ Undeniably, when a person who is removed from and isolated from society lives in a place of discipline and punishment for more than 10 years, or even for several decades, his or her behaviour and way of thinking naturally change, with some improvement, which could be viewed as the positive effects of punishment; however, its negative effects are also obvious and last for a very long time after the convict is released from prison. In addition, “family (i.e. the prisoner’s family) is affected and involved in the prison sentence, [and] it affects everybody close.”⁶⁹ The effect of life imprisonment on prisoners’ families is very apparent and intense, in fact “it is like someone had died.”⁷⁰ These effects may include the loss of the family income, strongly negative effects on marital relationships, even leading to divorce, and, in some cases, a prisoner’s older parents cannot provide support for the children, which has a very negative impact on prisoners’ children. Especially in China, long term imprisonment has an impact on the children’s occupational opportunities, in areas such as the police force, and civil or public service, where political background checks may be run on the applicant. We cannot ignore the fact that the effect of life imprisonment on prisoners’ families are long term and hidden.

5.4.2 The Effects of Life Imprisonment on the Victims

As a specific penal measure, it seems that there are no direct effects of life imprisonment on the victims and even their family members. However, the penalty is, to a great extent derived from the concept of private retaliation, i.e., “an eye for an eye, a life for a life”. However, this right to retaliation is transferred to the sovereign, which becomes the public power, to determine and punish the crime in the name of the state. Thus, in a formal sense, contemporary punishment is no longer private revenge, but is regarded as the symbol of the power of the state, which represents the whole society, including the victims and their family members, and is entrusted to punish the crime, protect the state’s legal interests and individual interests, and then achieve social justice and fairness. In the light of this, the penalty does not bring any direct and visible compensation or economic benefit to the victims and their family members; it only can bring them some kinds of spiritual solace, i.e., the victims and their families believe that the offender has received his or her just deserts. Life imprisonment plays an important role in the penalty system, and it is normally only used for the most serious crimes, which generally cause serious harm and damage to the victim’s health, property and even life. For the serious harmful consequences caused by the crime, the victim and his or her family members naturally hope that the offender is given a serious penalty, so that justice can be restorative. As some scholars have said, “when a person is unjustly harmed, people experience a strong desire to punish the wrongdoer and more harm is typically accompanied with more punishment.”⁷¹ For the victims and their family members, life imprisonment, serving as the second severest punishment after the death penalty, is an appropriate penalty measure satisfying the victims and their family members’ expectations, and it can, to a great extent, indirectly compensate their mental suffering.

5.4.3 The Effects of Life Imprisonment on the Public

In fact, the effects of life imprisonment on the public are also in some senses hidden and indirect, and generally include deterrence—which means the potential offender is deterred by the life sentence -, and restorative justice. Firstly, as the second severest punishment, life imprisonment should have a largely deterrent effect similar to the death penalty. Even though life imprisonment does not deprive the offender of the right to life, it deprives him or her of liberty and even the right to hope for a long time, and even for the rest of his or her life. It also means he or she will be isolated from society and forced to remain in a prison with similar people. In prison they do not have a normal social life. From this perspective, life imprisonment is a strong deterrent to the potential offender. However, this is only a theoretical prediction, lacking any exact statistics or empirical studies to show what kind of deterrence life imprisonment has. It is like the deterrence of the death penalty, on which “the question whether the death penalty actually deters is uncertain”⁷²; some scholars have even cited the American Civil Liberties Union report and argued that “there is no credible proof that the death penalty in either substance or practice deters future or recidivist criminal behaviour.”⁷³ In the light of this, the deterrence of life imprisonment is also indirect and uncertain. However, we also cannot deny and ignore its deterrence, since it is normally provided for serious crimes, and usually only for the most serious of these. A potential offender will hesitate to commit a serious crime when he or she is aware of the consequence of his or her behaviour. Secondly, it is natural that restorative justice will normally be understood to mean that the crime is punished by the relevant punishment, in order to protect legal interests. In China, restorative justice may have another important meaning, especially in cases which attract public attention and outrage. In these cases, life imprisonment normally serves to assuage the public in situations in which the relevant circumstances of the crime are not sufficient for the imposition of the death penalty, because life is the second severest punishment and can incarcerate the offender for a long term and can thus be accepted by the public. For example, in judicial practice there have been certain controversial cases which have provoked public debate and outrage, like the cases of “Tanghui”⁷⁴ and of “Sun Weiming”.⁷⁵ As a concrete measure applied by the punishment system, it protects both public and private security and legal interests, together with other penalty measures, although it is hard to say life imprisonment has a direct effect on the public.

5.5 Life Imprisonment in China and Other Countries

5.5.1 Life Imprisonment in China

After the death penalty, life imprisonment is the second most severe punishment in China’s present criminal punishment system. There are currently 102 crimes punishable by life imprisonment in the present Specific Provisions of Criminal Law, accounting for 21.79% of a total of 468 crimes⁷⁶; almost all of these 102 are provided with a fixed-term imprisonment of not less than 10 years, 46 of them are stipulated together with the death penalty,⁷⁷ 5 are provided with a fixed-term imprisonment of not less than 7 years,⁷⁸ and 1 is provided with a fixed-term imprisonment of not less than 15 years.⁷⁹ The distribution of crimes punishable by life imprisonment is shown in Table 5.1. Based on the analysis, this section intends to examine the life imprisonment system in the present Criminal Law of China).

Table 5.1 The distribution of crimes punishable by life imprisonmentFootnote

《中华人民共和国刑法》 [Criminal Law of the People’s Republic of China], Order No. 83, 2015,.

5.5.1.1 Conditions for Passing a Sentence of Life Imprisonment

In the General Provisions of the Criminal Law, there is no special provision to stipulate directly the applicable condition for life imprisonment, such as is provided for the use of the death penalty in some articles.⁸¹ However, in the light of Article 17, criminal punishment, including life imprisonment, shall not be imposed on a person who had not reached the age of 14 years old when he or she committed the crime; a person who was over 16 at the time he or she committed the crime shall be given a criminal punishment, including life imprisonment; but a person who has reached the age of 14 but not the age of 16, and has committed intentional homicide, intentionally hurts another person so as to cause serious injury or death, or commits rape, robbery, drug-trafficking, arson, explosion or poisoning, shall bear criminal liability.⁸² According to the Specific Provisions of Criminal Law, all these 8 crimes can be punishable by life imprisonment and death, and an offender who is younger than 16 years old but has turned 14 and committed one, or more than one kind of these 8 crimes may be sentenced to life imprisonment, although in these cases the applicable conditions should be stricter than those applied to others.⁸³ In addition, under the present Criminal Law, a person who has reached the age of 75 may also be sentenced to life imprisonment if he has committed a crime punishable by life imprisonment and/or death, even though Article 17–1 provides that a person who has reached the age of 75 may be given a lighter or mitigated penalty if he commits an intentional crime.⁸⁴ When considering other states, we can see that their provisions for the use of life imprisonment are stricter than China’s. For example, in accordance with the Article 57 of the Romanian Penal Code, life imprisonment shall not be imposed on an offender who has turned 65 years of age at the date when the judgment to convict is returned, but shall be replaced by a prison term of 30 years and a ban on the exercise of certain rights for the maximum duration of the prison sentence⁸⁵ and “life imprisonment is also not going to be applied for the minor offender”⁸⁶; Under the Hungarian Criminal Code, only persons over the age of 20 at the time of commission of the crime shall be sentenced to life imprisonment.⁸⁷ Except for these considerations relating to age, in the Criminal Law of China, there is no specific general provision referring to the applicable conditions for life imprison. However, conditions are provided by the Specific Provisions of the Criminal Law in all kinds of crimes punishable by life imprisonment, and they include the following types.

• (1) Life imprisonment for action crime （行为犯）. The actus reus of action crimes here is simply an act or behavior which is proved to have already been committed, the consequences of which are immaterial, and which is an important type of crime; most of these crimes are generally relatively serious and are provided with a correspondingly heavy penalty, such as the death penalty and life imprisonment. In the Criminal Law, life imprisonment is normally provided for action crime without any consideration of circumstances or any other conditions; it is normally a mandatory sentence, and in some crimes, it is the maximum legally prescribed penalty. These action crimes include treason (Article 102), aiding the enemy (Article 112), forming or leading a terrorist organization (Article 120), aircraft hijacking (Article 121), intentional homicide (Article 232) and stealing, spying into or buying military secrets for, or illegally offering such secrets to, agencies, organizations or individuals outside the territory of China (Article 431(2)). All of these six crimes are very serious crimes and all of them can be punishable by death.

• (2) Life imprisonment may only be imposed on a perpetrator under some legally-prescribed circumstance according to the law. These circumstances include the crime scene, the object of the crime, the criminal consequences, the means of crime, and the position of perpetrator in a criminal organization, and so on. The crime scene is a significant legally prescribed circumstance for passing sentence in the Criminal Law of China; for example, robbing public or private property by violence, coercion or other methods carries a fixed-term imprisonment of not less than three but not more than 10 years, but if the robber intrudes into another person’s residence to rob, robs on board a means of public transportation, or rapes a woman in a public place, he shall be sentenced to a fixed-term imprisonment of not less than 10 years, life imprisonment or death.⁸⁸ The object of the crime is also an important sentencing factor; for example, anyone robbing a bank or any other banking institution,⁸⁹ or stealing or forcibly seizing guns, ammunition or explosives from State organs, members of the armed forces, the police or the people’s militia,⁹⁰ shall be sentenced to a fixed-term imprisonment of not less than 10 years, life imprisonment or death. Criminal consequence is another important sentence factor in a majority of provisions in the Specific Provisions of the Criminal Law. Some provisions stipulate directly the consequence of crimes, with the amount of property or illegal property involved in the crime serving as the applicable condition for life imprisonment; for example, for economic crimes in Chap. 3, the amount of property or other goods involved in the crime serves as a sentencing factor,⁹¹ and some provisions stipulate “causing death or serious injury, or causing heavy losses of public or private property” as the applicable condition for life imprisonment; for example, Article 236(3) provides that anyone raping a women and causing serious injury or death to the victim or any other serious consequences, the offender shall be sentenced to a fixed-term imprisonment of not less than 10 years or life imprisonment or the death penalty.⁹² However, a majority of provisions, i.e. around 53 provisions, include the terms “commit major crimes” or “serious circumstance” or “especially serious circumstance” which serves as the applicable condition for life imprisonment. Generally, these kinds of terms in the provision are normally regarded as “miscellaneous provisions (兜底条款)” and in practice, it is normally interpreted by the SPC through judicial interpretation in accordance with the characteristics of different crimes, or according to mandate, by the local High People’s Courts, who make this kind of interpretation according to the local economic and social situation. The means of the crime is also a sentencing element; for example, robbing with a gun,⁹³ or, by resorting to especially cruel means, causing severe injury to another person, or reducing the person to utter disability,⁹⁴ and using arms to protect the smuggling, trafficking in, transporting or manufacturing of narcotic drugs,⁹⁵ all bring a sentence of a fixed-term imprisonment of not less than 10 years, life imprisonment or death. The position of the perpetrator in a criminal organization is also an important applicable condition for life imprisonment; for example, anyone who is a ringleader of a gang engaged in abducting and trafficking in women and children shall be sentenced to a fixed-term imprisonment or life imprisonment.⁹⁶ Meanwhile, there are other applicable conditions for life imprisonment such as the perpetrator’s attitude towards an admission of guilt, the perpetrator’s criminal record and so on.

All in all, the applicable conditions for life imprisonment are not stipulated directly by the General Provisions of the Criminal Law, except for the object of the punishment itself, but by the provisions providing concrete crimes in the Specific Provisions. Life imprisonment in the Specific Provisions is stipulated together with the death penalty, serving as an alternative option to the latter, and the applicable conditions for both penalties are, to a great extent, the same. But the applicable conditions for the death penalty are provided by Articles 48, 49, 50 and 51 in the General Provisions, and limit the use of the death penalty. The question remains, therefore, whether it is necessary or not to provide the applicable conditions for life imprisonment in the General Provisions when the death penalty is completely removed from the Criminal Law. Looking at the criminal codes of some abolitionist states, such as the German Criminal Code, the General Penal Code of Finland (1940 No. 19 (12 February)), and the Criminal Code of Hungary (Act C of 2012), we find that there is no general applicable condition for life imprisonment. But the situation in China is very different, which the death penalty has not been completely repealed, and there are two types of life imprisonment, i.e., LWPR and LWOR. In order to protect human rights, the conditions limiting it should be provided explicitly by the General Provisions, just as is the case with the limiting conditions for the death penalty, and LWOR should not be the alternative option to the death penalty as “life imprisonment without parole is worse than a death sentenced.”⁹⁷

5.5.1.2 Terminating Mechanisms: A Twin-Track Approach

Under the present Criminal Law, a twin-track approach is adopted to terminate life imprisonment: i.e. LWPR and LWOR.

5.5.1.2.1 LWPR: Commutation

Considering the special penalty elimination system in China, release from prison can generally come through the commutation of punishment and parole, both of which are normally applied at the same time. According to Article 78, commutation operates in two situations; namely, discretionary commutation (酌定减刑， zhuodingjianxing) and mandatory or legally provided commutation (法定减刑， fading jiangxing). Discretionary commutation of life imprisonment refers to a situation in which the penalty “may” be commuted if the offender “conscientiously observes prison regulations, accepts education and reform through labor and shows true repentance or performs meritorious services while serving his sentence,⁹⁸ but the commutation is not certain to be granted and its likelihood is lower than with mandatory commutation, which is a situation in which the penalty “shall” be commuted, and this is certain to be granted by law if the perpetrator performs any of the major meritorious services provided in the Criminal Law as detailed below:

• (1) Preventing another person from conducting major criminal activities;

• (2) Informing against major criminal activities conducted inside or outside prison and verified through investigation;

• (3) Assisting judiciary authorities to arrest another major suspect/offender, including a joint offender;

• (4) Having inventions or important technical innovations to his credit;

• (5) Coming to the rescue of another in everyday life and activities, at the risk of losing his own life;

• (6) Performing remarkable services in fighting against natural disasters or curbing major accidents; or

• (7) Making other major contributions to the country and society.⁹⁹

For the offender sentenced to life imprisonment, if his performances meet the conditions for discretionary commutation, the penalty may be commuted to a fixed-term imprisonment of 22 years after serving two years of the sentence, if the offender shows true repentance or performs meritorious services; it may be commuted to a fixed-term imprisonment of 21–22 years if he or she shows true repentance and performs meritorious services¹⁰⁰; by contrast, if the offender serving life imprisonment performs major meritorious service, the sentence may be commuted to a fixed-term imprisonment of 20–21 years; it may be commuted to a fixed-term imprisonment of 19–20 years if the offender shows true repentance and performs major meritorious service.¹⁰¹ These provisions have been changed significantly by the Eighth Amendment and relative judicial interpretation and are stricter than those of the 1997 Criminal Law. In accordance with the 1997 Criminal Law and its judicial interpretations, if the offender shows true repentance or performs meritorious services, his sentence might be commuted to a fixed-term imprisonment of 18–20 years, and if the offender performs major meritorious service, it might be commuted to a fixed-term imprisonment of 13–18 years.¹⁰²

Compared with discretionary commutation, mandatory commutation seems much more merciful. While serving his sentence, the offender may be granted many commutations, but the interval between two commutations shall not be less than two years, and after one or multiple commutations, the actual term of the sentence served by an offender sentenced to life imprisonment shall not be less than 13 years, which was also increased from the 10 years provided by the 1997 Criminal Law.¹⁰³ The commencement date is calculated from the date when the life imprisonment judgment is announced.¹⁰⁴ The commutation per instance for the offender who shows true repentance or performs major meritorious service shall be no more than 9 months; for the offender who shows true repentance and performs major meritorious service it shall be no more than 1 year; for those who perform major meritorious service it shall be no more than one and half years; for those who perform major meritorious service and show true repentance, it shall be no more than 2 years.¹⁰⁵ In order to truly prevent people engaging in malpractices for personal gain, power or corrupt financial dealings,¹⁰⁶ on 21 January 2014, the CPLAC, promulgated a document to strictly regulate and improve the conditions of commutation and parole for the offender who commits any crime which involves taking advantage of a duty, disrupting the order of financial administration, or forming, leading, taking an active part in, harboring, or conniving in an organization of a criminal syndicate nature. Based on this document, in the new Provisions on Several Legal Issues concerning the Specific Application of the Law in Handling Commutation and Parole Cases, the SPC extended the commencement date for the commutation of life imprisonment imposed on the offender who commits any of the above mentioned crimes, i.e., it may be commuted to fixed term imprisonment after the offender has served three years of the sentence, although the actual executive terms after the commutation shall not be less than 20 years. The interval between two commutations shall be two years or more, and the commutation per instance shall be no more than 1 year, although these requirements are not applied to the mandatory commutation; in other words, there is no limitation on the commencement date and interval for mandatory commutation.¹⁰⁷ These same restrictions on commutations are also applied to the offender who commits the crimes of endangering national security, or the crimes of terrorism, or is a ringleader of a gang engaged in drug-related crimes or recidivism of drug crimes, and the offender who is a recidivist or convicted of murder, rape, robbery, abduction, arson, explosion, dissemination of hazardous substances or organized violence who is sentenced to death with reprieve.¹⁰⁸ There were no provisions with the same restrictions in the 1997 Criminal Law.

In addition, life imprisonment reduced from the death penalty with reprieve may be reduced to a fixed-term imprisonment of 25 years after the offender has served two years of the sentence if he/she shows true repentance or performs meritorious services. If he/she genuinely performs any major meritorious services, the sentence may be commuted to a fixed term imprisonment of 23–25 years after serving two years of the sentence. Under the 1997 Criminal Law, in this case, it may be commuted to a fixed-term imprisonment of 15–20 years.¹⁰⁹ After one or multiple commutations, the actual term of the sentence served by an offender sentenced to the death penalty with reprieve shall not be less than 15 years, which is 3 years more than that provided by the 1997 Criminal Law,¹¹⁰ excluding the probation period for suspension of execution; and it may be commuted to a fixed term imprisonment after the offender has served three years of the sentence.¹¹¹ In addition, for a recidivist or someone convicted of murder, rape, robbery, abduction, arson, explosion, dissemination of hazardous substances or organized violence who is sentenced to death with reprieve, the court may, when sentencing, decide to put restrictions on the commutation of his sentence in the light of the circumstances of the crime committed; if he/she is granted a commutation while serving the sentence of life imprisonment commuted from the death penalty with reprieve, the court should strictly apply the conditions of the commencement date, the time interval and the commutation range.¹¹² Namely, the life imprisonment commuted from the death penalty with reprieve may only be commuted to fixed-term imprisonment after the offender has served five years of the sentence, and the commutation per instance shall be no more than 6 months; for the offender who performs meritorious services, it shall be no more than 1 year.¹¹³ In fact, the restrictions on commutation have been newly provided by the Eighth Amendment and the judicial interpretation.

“The commutation of punishment provided by the Criminal Law is a kind of universal penalty implementation system with distinct characteristics, and it is unique … in the world.”¹¹⁴ In general terms, it is even a significant condition for the convict serving life imprisonment to be granted parole because “the conditions of parole are stricter than those of commutation.”¹¹⁵ Furthermore, in practice, the application rate of commutation is always higher than that of parole¹¹⁶; for example, in accordance with the SPC’s report, the number of commutation cases from January to September 2014 was 370,998, while parole cases numbered only 26,904.¹¹⁷ Even though it is impossible to discover the exact number of cases of commutation of life imprisonment, the statistical data above show that the possibility of commutation is much greater than that of parole. One of the important reasons for this might be that most enforcement authorities have to take supervisory responsibility if the convict commits any other crime while serving his sentence outside of prison when he is granted parole, so most enforcement authorities are against parole.¹¹⁸

5.5.1.2.2 LWPR: Parole

Parole is another significant method of early release from prison. In accordance with Article 81 of the Criminal Law, an offender sentenced to life imprisonment who has actually served not less than 13 years of imprisonment may be granted parole if he/she conscientiously observes the prison regulations, accepts education and reform through labor, shows true repentance and is not likely to commit any crime again. Actually, the limitations for parole are almost the same as those provided by the 1997 Criminal Law, except that the term of punishment actually to be served is longer than that provided by the 1997 Criminal Law, which was not less than 10 years.¹¹⁹ If special circumstances exist, upon the verification and approval of the SPC, parole may be granted without regard to the above restrictions on the term served.¹²⁰ Here we can see that the condition of “he conscientiously observes the prison regulations, accepts education and reform through labor, and shows true repentance” and the minimum term to be served in prison, which is not less than 13 years, are the same as the basic condition for commutation, but the conditions of parole are higher and stricter than those of commutation because of the assessed risk of committing a crime again. Regarding this risk, it should be comprehensively evaluated based on the concrete circumstances of the crime committed by the convict, the facts of the original sentence, the convict’s consistent performance while serving his/her sentence, the convict’s age, physical condition, personality characteristics, and his/her source of livelihood after release from prison, as well as the supervision measures and conditions.¹²¹ In addition, “when a parole decision is made on a convict, the impact of his/her release on parole on the community where he lives shall be considered,”¹²² a provision which was added by Article 16(3) of the Eighth Amendment. Article 81(3) provides for an exception where a “special circumstance exists”; but what exactly is this circumstance? In accordance with judicial interpretation, it is a “circumstance … significantly related to the whole social and state interest”,¹²³ but this interpretation is still not clear, and some scholars have pointed out that “the concept and scope of the specific circumstance defined by judicial interpretation is ambiguous and it results in theoretical diversity and abuse in judicial practice.”¹²⁴ In addition, there is a prohibiting provision on parole for some special convicts, including “the recidivist or a convict sentenced to life imprisonment for murder, rape, robbery, abduction, arson, explosion, dissemination of hazardous substances, or organized violent crime.”¹²⁵ It was amended by Article 16(2) of the Eighth Amendment. Even though those convicts falling into the categories above cannot be granted parole, they can be released early on commutation, in accordance with the present law. However, the convict who is sentenced to life imprisonment and released on parole is still supervised under the judicial authorities for a certain probation period.¹²⁶ During this probation period, the offender granted parole should observe the following requirements: (1) observing laws and administrative rules and regulations, and submitting to supervision; (2) reporting on his own activities as required by the supervising organ; (3) observing the regulations for receiving visitors stipulated by the supervising organ; and (4) reporting to obtain approval from the supervising organ for any departure from the city or country he lives in or for any change in residence.¹²⁷ Furthermore, he/she shall be subjected to community correction during parole, according to law.¹²⁸ The community correction system is newly established by the Eighth Amendment.¹²⁹ If he/she commits another crime during the probation period for parole, or is discovered to have committed, before the judgment is pronounced, other crimes for which no punishment has been imposed, or he/she violates any provision of the laws, administrative regulations or the relevant department of the State Council on parole supervision and management if the above do not constitute a new crime, his parole shall be revoked.¹³⁰

5.5.1.2.3 LWOR: Crimes of Embezzlement and Bribery

In fact, the convict who is not sentenced to immediate execution may be released early on parole or commutation, regardless of the crime he/she committed, if the release conditions have been satisfied, even though he/she was restricted to commutation and prohibited parole before the Ninth Amendment. However, this situation was changed by the Ninth Amendment. According to Article 44(4) of the Ninth Amendment, for a convict who commits the crimes of embezzlement or bribery and is sentenced to the death penalty with reprieve, the court may, depending on the circumstances of the crime, at the same time decide, after commuting the suspension of execution to life imprisonment on the expiry of the two year period, to imprison him for life, without commutation or parole.¹³¹ In accordance with the judicial interpretation made by the SPC and SPP on 28 March 2016, a convict who has embezzled or taken bribes of not less than 3 million Yuan (CNY), may, in a case where the circumstances are especially serious, the social impact is especially severe and heavy losses are caused to the state and people, be sentenced to the death penalty. However, if he/she surrenders voluntarily, performs any meritorious service, confesses the crime and so on, and if the immediate execution is not deemed necessary, a two year suspension of execution may be pronounced simultaneously with the imposition of the death sentence, and at the same time a decision taken to prohibit commutation and parole, according to the circumstances.¹³² This decision should be made at the first and second trial, respectively, rather than upon the expiry of the two-year period, and therefore it emphasizes that once the decision to impose LWOR has been made, it will not be affected by the offender’s performance during the period of suspension and it shall be enforced without any condition. Consequently, this is termed the systemic rigidity of LWOR.¹³³

The LWOR system was first established by the Ninth Amendment after the first criminal law was passed in 1979 and was “a brand new punishment measure”.¹³⁴ Thus far, it has already been applied to three convicts.¹³⁵ The Chief Editor of the SPP’s Research Office of Legal Policies, Wan Chun, said that “it is a new enforcement measure of the death penalty, which is in between the death penalty with immediate execution and the general death penalty with reprieve.”¹³⁶ Even though it exists only for the crimes of embezzlement and bribery, it sends a significant signal about the alternative penalties to execution in the context of gradually reducing the death penalty. Some scholars positively affirmed LWOR and said that “according to the principle of suitable punishment for a crime, trying to impose LWOR on the convict who should have been sentenced to death for the serious crime of embezzlement or bribery is a positive and prudent option.”¹³⁷ “Compared with the immediate execution of the death penalty, LWOR has its own humanitarian aspect.”¹³⁸

5.5.2 Life Imprisonment in Other States

Life imprisonment is the maximum and the severest punishment in many states’ penalty system, except in the states that retain the death penalty as their ultimate punishment. However, some states have not only removed the death penalty from their criminal punishment system, but also repealed life imprisonment. Therefore, this section would like to analyse the system of life imprisonment in other states. Considering the content of the section, it does not cover all the states in the world, but take some states as examples for analysis, including retentionist states which still retain the death penalty, and abolitionist states, as well as states where the death penalty and life imprisonment have been repealed. But it must be pointed out that even though life imprisonment has been abolished by some states, long term imprisonment does exist in the states’ penalty system and thus it will be taken as the object of analysis. This section intends to analyse the prevalence of life imprisonment, and the conditions for its use as a sentence, as well as its termination mechanism in the relevant states.

5.5.2.1 Life Imprisonment in the Abolitionist States: Taking Some Member States of the EU as Examples

As of now, all the member states of the EU have already completely removed the death penalty from their penalty system, and life imprisonment has been upgraded to the maximum punishment and so become the severest punishment. This section cannot cover all the member states’ life imprisonment systems, but considers some states as examples; Germany, the Netherlands, Hungary and Romania. The former two states are West European states, and the latter are Central and South-eastern European states.

• (1) The prevalence of life imprisonment. The prevalence of life imprisonment refers to the number of crimes punishable by life imprisonment according to the criminal law. In other words, this generally means that life imprisonment is prescribed by the criminal law for these crimes. In the German Criminal Code, 18 provisions in the Special Part provide for crimes punishable by life imprisonment, accounting for 5.02% of a total of 358 effective provisions in the Special Part of the Criminal Code.¹³⁹ 6 of 18 provisions deal with offenses causing a common danger¹⁴⁰; 3 of the 18 are offenses against sexual self-determination.¹⁴¹ By comparison, there are 23 provisions in the Special Part of the Hungarian Criminal Code prescribing crimes punishable by life imprisonment, accounting for 7.28% of a total of 316 provisions providing for crimes in this Part.¹⁴² This proportion is higher than in Germany. 4 of the 23 provisions providing for crimes punishable by life imprisonment are related to offenses against the State; 3 of the 23 provisions to crimes against humanity; 3 provisions to war crimes; 3 provisions to drug trafficking; 3 provisions are offenses against public security; 2 relate to offenses against personal freedom; 2 are crimes against the judicial system; and so on. In the Netherlands’ Criminal Code, there are 32 provisions relating to crimes providing for life imprisonment,¹⁴³ accounting for 6.54% of a total of 489 effective provisions relating to crimes in Books Two and Three.This proportion is higher than that of Germany’s Criminal Code, but lower than that of the Hungarian Criminal Code. Among these 32 provisions, 9 of them relate to serious offenses against the security of the state, and 8 sections to serious offenses endangering the general safety of persons or property. Turning to the Criminal Code of Romania, the number of the crimes punishable by life imprisonment stipulated in the Special Part is less than in the preceding three states because there are only 12 stipulations providing for crimes punishable by life imprisonment,¹⁴⁴ accounting for 4.65% of a total of 258 stipulations related to crimes in the Special Part of the Criminal Code of Romania. 6 of these 12 provisions relate to offenses against national security, 3 to crimes of genocide, crimes against humanity and war crimes, 2 to crimes against the fighting capacity of the armed forces, and 1 provision relates to offenses against the person. In all of the 4 states discussed above the proportion of crimes punishable by life imprisonment in their Criminal Codes is very similar, and life imprisonment makes up only a small proportion in the penalty system, and is only used for felonies.

• (2) Conditions for passing a sentence of life imprisonment. Based on an analysis of these four states’ Criminal Codes, life imprisonment can be applied in the following two main situations. Firstly, life imprisonment can be applied for action crimes, which are proved to have already been committed and whose consequences are not material, and which are classified as felonies. For example, Section 80 of Germany’s Criminal Code, which deals with the crime of preparation of a war of aggression, provides that “whosoever prepares a war of aggression…shall be liable to imprisonment for life”,¹⁴⁵ and Sections 81 and 211.¹⁴⁶ By comparison, the number of action crimes punishable by life imprisonment in the Netherlands’ Criminal Code is more than in the German Criminal Code. There are 20 provisions providing for life imprisonment for action crimes, accounting for 62.5% of a total of 32 provisions providing for crimes punishable by life imprisonment in the Netherlands Criminal Code.¹⁴⁷ The proportion of the number of provisions in the Hungarian Criminal Code providing for life imprisonment for action crimes is lower than in the Netherlands’ Criminal Code, but higher than in the German Criminal Code, totalling 8 provisions applying life imprisonment for action crimes, accounting for 33.33% of a total of 24 provisions.¹⁴⁸ However, the proportion of provisions providing life imprisonment for action crimes in the Romanian Criminal Code is higher than in the Netherlands, totalling 8 provisions, accounting for 66.67% of a total of 12 provisions in the Romanian Criminal Code.¹⁴⁹ Secondly, life imprisonment can be applied to an offender under certain legally-prescribed circumstances according to the law, such as causing the victim to die, having serious consequences or circumstances, or in especially serious cases. For example, 15 of the 18 sections provide for crimes punishable by life imprisonment under legally prescribed circumstances in the German Criminal Code, accounting for 83.33% of a total of 18 provisions,¹⁵⁰ which is more than in the Hungarian Criminal Code. There are 16 provisions providing crimes punishable by life imprisonment under legally prescribed circumstances in the Hungarian Criminal Code, accounting for 66.67% of a total of 24 provisions.¹⁵¹ The proportion of the number of provisions providing for crimes punishable by life imprisonment under legally prescribed circumstances in the Netherlands’ Criminal Code is less than in the Hungarian and German Criminal Codes, totaling 12 provisions, accounting for 37.5% of a total of 32 provisions.¹⁵² By comparison, the proportion of provisions providing for crimes punishable by life imprisonment under legally prescribed circumstances in the Romanian Criminal Code is the lowest, with only 4 provisions, accounting for 33.33% of a total of 12 provisions.¹⁵³ “Legally prescribed circumstances” in these four states in most cases means that the crime causes death, and in other cases that the circumstances of the case are serious. According to the above analysis, in these four states’ criminal codes life imprisonment is mainly imposed on the offender under legally prescribed circumstances.

• (3) Termination Mechanisms for Life Imprisonment. As for the termination mechanism for life imprisonment, there are generally two main approaches around the world, i.e. life imprisonment with possibility of release and life imprisonment without any possibility of release. Life imprisonment without release is a punishment that “removes any uncertainty at the time of sentencing about the possibility of rehabilitation by condemning the inmate to die in prison.”¹⁵⁴ Currently, according to the report “Cruel and Unusual: U.S. Sentencing Practices in a Global Context”, 38 countries out of the world’s 193 are “known to have life imprisonment without parole statutes (20%), and 21 countries have no discernible statutory provision allowing for such a sentence”.¹⁵⁵ The Netherlands is one of the 21 states which has life imprisonment without release, where the Criminal Law does not stipulate any provision about terminating the inmate’s life sentence. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) have argued that, “in the Netherlands, life imprisonment really means imprisonment for the rest of one’s life.”¹⁵⁶ In relation to life imprisonment without release, a Dutch national, Mr. James Clifton Murray, alleged that, in violation of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention), the life sentence imposed on him by the Netherlands’ Court was de jure and de facto irreducible, and complained about the Kingdom of the Netherlands to the European Court of Human Rights (ECtHR) on 22 February 2010.¹⁵⁷ The ECtHR concluded that “the Article 3 violation was aggravated by the existence of a discretionary and opaque pardon system”¹⁵⁸ According to the CPT Report, as of 13 May 2016 there were 33 persons serving a life sentence in the Netherlands’ prisons.¹⁵⁹ However, an inmate who is sentenced to life imprisonment can be released early by a pardon granted by Royal Decree upon the recommendation of a court designated by Act of Parliament according to Article 122 of the Constitution of the Kingdom of the Netherlands¹⁶⁰; this “may be granted only if there are ‘changed circumstances’, for instance, health reasons.”¹⁶¹ On June 2, 2016, Klaas Dijkhoff, State Secretary for Security and Justice, addressed a letter to the Dutch Parliament indicating his plan to introduce a review mechanism for life sentences after the offender has served 25 years of the sentence.¹⁶² In the CPT Report, therefore, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment “recommends necessary legislative and administrative measures be taken rapidly to provide persons sentenced to life imprisonment with a clear avenue for consideration of release, based upon objective criteria, after a defined time period.”¹⁶³

By comparison, life imprisonment in the Hungarian Criminal Code is relatively more humane than in Netherlands. The Hungarian Criminal Code provides that “in the event a sentence of life imprisonment is imposed, the court shall specify the earliest date of eligibility for parole, or shall preclude any eligibility for parole”¹⁶⁴; if the court does not preclude eligibility for parole with a sentence of life imprisonment, the earliest date for release on parole shall be after serving 25 years, or at least forty years, and the duration of parole shall be not less than 15 years.¹⁶⁵ However, the court may deny the possibility of parole for the sentence of life imprisonment when the case involves crimes provided by Section 44 of Hungarian Criminal Code.¹⁶⁶ This Sections was applied in the case of Törköly v Hungary (Application no. 4413/06, 5 April 2011). In this case, on 25 July 2014 the applicant, Tibor Törköly, was convicted by the Bács-Kiskun County Regional Court of multiple, recidivist attempted grave bodily assault and of aggravated murder committed with special cruelty, and given a life sentence with eligibility for release after 40 years.¹⁶⁷ Furthermore, if the offender is a repeat offender with a history of violence or has committed a criminal offense defined in Section 91 Subsection (1), which provides for crimes committed in the framework of a criminal organization, the court shall deny the possibility of parole for the perpetrator.¹⁶⁸ This means that the court has to deny parole to the perpetrator if he or she is involved in acts related to the circumstances provided in Section 44 (2); consequently, the perpetrator will not be released from prison. This section was applied in the case of László Magyar v. Hungary (application no. 73593/10, 20 May, 2014). In this case, the applicant, Mr. László Magyar, was convicted of murder, robbery and several offenses, and was sentenced to life imprisonment without eligibility for parole.¹⁶⁹ In fact, this “real life imprisonment” was introduced in 1998 with some modification, which is considered to be the toughest amendment.”¹⁷⁰ The ECtHR’s final judgement in this case held that “Hungary would be required to reform the system of review of whole life sentences to guarantee that life prisoners can foresee what they must do to be considered for release and under what conditions.”¹⁷¹ However, in 2013, the Hungarian legislature had already adopted a new Penitentiary Code (Act CCXL of 2013) to reform the penalty system by replacing the old Penitentiary Code, which was adopted in 1979, although the Act CCXL of 2013 does change the regulation of real life imprisonment.¹⁷² This new provision on life imprisonment was changed quite soon after Act LXXII of 2014, which was adopted as a response to the judgement on the case of László Magyar v. Hungary (application no. 73593/10) and modified the new Penitentiary Code’s rules on life imprisonment by inserting a new subtitle on mandatory pardon proceedings for persons sentenced to life imprisonment without the possibility of conditional release.¹⁷³ The pardon process, which needs to be agreed to by the convict, is deliberated by a Pardon Committee consisting of five judges, and the final decision on pardon will be made by the President of Hungary.¹⁷⁴ Therefore, life imprisonment in Hungary can de jure and de facto be terminated earlier with a Presidential pardon, which means that in response to the criticism of the ECtHR, the presidential pardon system has made modifications.¹⁷⁵ Even though the Hungarian legislature amended their laws and introduced a new automatic and mandatory review system of life imprisonment after the inmate has served 40 years of his or her sentence in prison, the European Court of Human Rights, in the cases of T.P. and A.T. v. Hungary (application nos. 37871/14 and 73986/14), held that there had been a violation of Article 3 of the ECHR, because making a prisoner wait 40 years before he or she could expect to be considered for clemency for the first time is too long, and such a period was significantly longer than the maximum recommended time frame (25 years).¹⁷⁶

Looking at life imprisonment in Germany, according to Section 57a of the German Criminal Code, an inmate who is sentenced to life imprisonment may be conditionally released early from prison after serving 15 years of the sentence in prison if he or she met the relevant requirements, i.e. the particular seriousness of the perpetrator’s guilt does not require its continued enforcement, and the release is appropriate considering public security interests, and with the consent of the perpetrator.¹⁷⁷ While deciding to grant early release to the inmate sentenced to life imprisonment, Section 57(1)2^nd sentence and (6) shall apply mutatis mutandis,¹⁷⁸ the court shall particularly consider the personality of the inmate, his or her previous history, the circumstances of his offense, the importance of the legal interest endangered should he or she re-offend, the conduct of the inmate while serving his or her sentence, his or her circumstances, his or her living conditions and the effects an early release are to be expected to have on him or her¹⁷⁹; and the court may refuse to grant early release from a life sentence if the perpetrator makes insufficient or false statements, as provided in Section 57(6).¹⁸⁰ If imprisonment for life has been imposed as an aggregate sentence the individual offenses shall be comprehensively evaluated in determining the particular seriousness of the crimes.¹⁸¹ Regarding this section on aggregative life imprisonment, there were two cases in which the perpetrators were not released after serving 15 years of their sentences in prisons; both convicts appealed to the European Court of Human Rights (Streicher v. Germany and Meixner v. Germany). In the case of Streicher v. Germany, the perpetrator, Mr. Dieter Streicher, was convicted of murder and attempted murder and sentenced to life imprisonment, and the Ansbach Regional Court held that the perpetrator was emotionally cold, had a tendency to overreact, and was psychopathic and antisocial. Based on the these facts and relevant reports, on 25 March 2004, the Regensburg Regional Court refused to suspend his sentence on probation and decided that the “particular gravity” of the applicant’s guilt and his personality warranted extending the sentence to at least 26 years’ imprisonment in total.¹⁸² In the case of Meixner v. Germany, the inmate, Rolf Friedrich Meixner, was convicted of a number of offenses, including triple murder, which he had committed while on probation, and sentenced to life imprisonment in 1986. In 2006, the Gießen Regional Court, the Court of Appeal and the Federal Constitutional Court subsequently refused the request from Rolf Friedrich Meixner for early release, relying on an expert’s opinion which concluded that there was a high risk of the applicant committing crimes again when released, and extended the sentence to at least 25 years’ imprisonment.¹⁸³

By comparison, life imprisonment in Romania seems more lenient than in the preceding three states (the Netherlands, Germany and Hungary) because life imprisonment shall be replaced or commuted to a fixed term imprisonment of 30 years if the inmate’s conditions meet the requirements of the Criminal Code; and the inmate can also be released early on parole. According to Article 57 of the Romanian Criminal Code, if the defendant has turned 65 at the date when the judgment to convict is returned, the sentence of life imprisonment shall be replaced by a prison term of 30 years and a ban on the exercise of certain rights for the maximum duration of the prison sentence¹⁸⁴; furthermore, if the inmate turns 65 while serving the sentence of life imprisonment, the life imprisonment can be replaced by a term of 30 years of imprisonment and a ban on the exercise of certain rights for the maximum duration of the prison sentence.¹⁸⁵ The former is called the replacement of life imprisonment, and the latter can be called the commutation of life imprisonment. We therefore can see that both the replacement and the commutation of life imprisonment are mandatory when the defendant or inmate reaches the age of 65. In both of these two cases the time already served in prison by the inmate shall be deemed as a prison sentence already served.¹⁸⁶

5.5.2.2 Life Imprisonment in the Retentionist States: Taking Japan and Singapore as Examples

As is clear from the above analysis of the death penalty around the world, Japan and Singapore are both retentionist states, which retain the death penalty in their Criminal Codes. In fact, life imprisonment in these two states’ penalty systems serves as an optional punishment in place of the death penalty for some serious crimes. The following section will analyse life imprisonment in these two states’ Criminal Codes in terms of its prevalence, the conditions for passing a sentence of life imprisonment and its termination mechanism.

• (1) The prevalence of life imprisonment. Japan and Singapore are states which retain the death penalty, and life imprisonment is an optional punishment for it. Based on an analysis of the Japanese Criminal Code, there are 13 provisions dealing with crimes punishable by life imprisonment, accounting for 6.34% of a total of 205 provisions dealing with crimes in Part II of the Code.¹⁸⁷ Among these 13 provisions, there are 9 provisions dealing with crimes punishable by the death penalty where life imprisonment serves as an alternative to the death penalty.¹⁸⁸ We also can see that the crimes punishable by life imprisonment are distributed in different chapters. As regards life imprisonment in Singapore, there are 35 provisions in the Singapore Penal Code providing for crimes punishable by life imprisonment, accounting for 8.00% of a total of 437 provisions dealing with crimes.¹⁸⁹ The proportion of these crimes in the Singapore Penal Code is more than in the Japanese code. Among these 35 provisions, there are 10 provisions dealing with crimes punishable by death and life imprisonment, of which the latter serves as an alternative punishment to the death penalty. And among these 35 provisions, there are 11 provisions providing for offenses affecting the human body, 8 for offenses against the state, 8 for robbery and gang-robbery, and 4 for providing false evidence and offenses against public justice.

• (2) Conditions for passing a sentence of life imprisonment. In the Penal Code of Japan, life imprisonment can be applied in the following two situations: (1) life imprisonment can be applied for action crimes, for example, Article 77(1.ii) provides that “a person who participates in a plot or directs a mob” shall be punished by life imprisonment without work.¹⁹⁰ In addition, this penalty is dealt with in Articles 82, 108, 126(1), 148, 154, 199, 225–2, 240¹⁹¹ and 241.¹⁹² There are 10 provisions (including paragraphs with the same provision but expressed in different ways), accounting for 58.82% of a total of 17 provisions. (2) Life imprisonment can be applied to an offender under certain legally-prescribed circumstances according to the law, including when the perpetrator has a special status, such as “if he or she is a ringleader” (Article 77(1.i)),¹⁹³ or if the crime causes special circumstances, as in Article 119 which deals with “a person who causes a flood to damage a building”,¹⁹⁴ or death to another person, as in Articles 126(3), 146, 181, 240¹⁹⁵ and 241.¹⁹⁶ There are 7 provisions (including paragraphs with the same provision but expressed in different ways), accounting for 41.18% of a total of 17 provisions. Similarly, in the terms of the categories of the applicable conditions for life imprisonment, the Singapore Penal Code is almost the same as the Penal Code of Japan; these conditions could be divided into two main situations, i.e., life imprisonment for special action crimes and life imprisonment applied to an offender under certain legally-prescribed circumstances according to the law, and the proportion of the former is higher than that of the latter. Specifically, there are 28 provisions providing for an action crime punishable by life imprisonment, accounting for 80% of a total of 35 provisions,¹⁹⁷ and there are 7 provisions providing for life imprisonment applied to an offender under certain legally-prescribed circumstances according to the law, accounting for 20% of a total of 35 provisions.¹⁹⁸ For instance, Article 307 provides “if hurt is caused to any person by such act”, Article 314 provides that “if the act done with intent to cause miscarriage is done without the consent of the woman, [the perpetrator] shall be punished … with imprisonment for life”, and Article 326 provides for a crime which “causes grievous hurt by special instruments.”

• (3) Termination Mechanisms for Life Imprisonment. It is a fact that a perpetrator who is sentenced to life imprisonment or whose sentence is life imprisonment commuted from the death penalty can be released early from prison, rather than being held in prison for the duration of his or her natural life. According to Article 28 of the Penal Code of Japan, when a person who is sentenced to imprisonment with or without work evinces signs of substantial reformation, the person may be paroled by a disposition of a government agency after that person has served 10 years of a life sentence.¹⁹⁹ Therefore, the inmate may be released from prison after serving 10 years of a sentence of life imprisonment in prison if he or she satisfies the conditions for parole. However, the parole may be revoked. According to Article 29, parole may be revoked in the following cases: (i) when a further crime is committed within the period of parole and a fine or greater punishment is imposed for the crime; (ii) when a fine or greater punishment is imposed for a crime committed before the parole; (iii) when a fine or greater punishment is imposed for another crime before the parole is implemented; (iv) when the person fails to observe any of the conditions of the parole.²⁰⁰ According to a Report issued by the Ministry of Justice of Japan, in the period from 1996 to 2015 there were 576 perpetrators newly sentenced to life imprisonment (無期刑新受刑者), and by the end of 2015, there were 1835 inmates serving their sentence of life imprisonment in prisons (年末在所無期刑者) in the State of Japan. In this decade, 71 inmates were released on parole (無期刑仮釈放者数); and in these 10 years, 53 of these 71 inmates were granted parole again after their preceding parole was revoked (無期刑新仮釈放者); 64 inmates died in prison while serving their sentence of life imprisonment (死亡した無期刑受刑者) in this decade.²⁰¹ Even though the minimum term of a life imprisonment sentence that needs to be served parole to be granted is 10 years as stipulated by the Penal Code of Japan, the average length of life imprisonment sentences served in prison before release on parole (平均受刑在所期間) is more than 10 years, indeed, it was 31 years and 6 months in 2015, 31 years and 4 months in 2014, 35 years and 2 months in 2011, 35 years and 3 months in 2010, while the lowest was 25 years and 1 months in 2006.²⁰² In comparison, commutation (reduction)—which is another way for the inmate to be released early from prison—seems more lenient than parole, at least, de jure. According to Articles 66 and 67, punishment may be reduced in the light of the extenuating circumstances of a crime, and it may only be reduced in the light of circumstances.²⁰³ Article 68(ii) provides that “when there are one or more statutory grounds for reduction of punishment, in the case of imprisonment with or without work for life [being] reduced, it shall be reduced to imprisonment with or without work for a definite term of not less than 7 years.²⁰⁴ This means that an inmate who is sentenced to life imprisonment can be released from prison on reduction (commutation) after serving 7 years of the sentence if all the requirements for reduction are satisfied. However, we cannot find the judicial statistical data to support this argument. Looking at Singapore, we cannot find any provision providing the details of a termination mechanism for life imprisonment in the Penal Code of Singapore because they are provided by the Criminal Procedure Code of Singapore and the Prison Act of Singapore. According to Article 333 of the Criminal Procedure Code, the inmate sentenced to life imprisonment may be released with a pardon, or on remission or on commutation. Article 333(1) provides that “where a person has been sentenced to punishment for an offense, the President may grant a pardon, reprieve or respite, on such conditions as the President thinks fit, of the execution of the sentence, or remit the whole or any part of the sentence or any penalty or forfeiture imposed by law.²⁰⁵ In fact, this provision specifically interprets the Constitutional provision in the Criminal Procedure Code. Article 22P of the Constitution of the Republic of Singapore provides that the President may, on the advice of the Cabinet, grant a pardon, or any reprieve, or respite or remission to the relevant inmate.²⁰⁶ The inmate sentenced to life imprisonment could be granted pardon, reprieve or respite. Where an application is made to the President, the President may require the presiding judge of the court before or by which the person is convicted to state his opinion as to whether the application should be granted or refused, and the judge shall state his opinion accordingly. Article 334 provides that “the President may commute a sentence of death for a sentence of imprisonment or fine or both, or commute a sentence of imprisonment for a sentence or fine.”²⁰⁷ Here the sentence of imprisonment includes life imprisonment. In another words, life imprisonment may be commuted by the President to a fine. As regards remission, Article 50F of the Prison Act of Singapore provides that “a prisoner shall be entitled to be released on the day a remission order is made in respect of him or his sentence of imprisonment is remitted.²⁰⁸ A person who is released and at large under a remission order shall be deemed not to be in the legal custody of the Commissioner.²⁰⁹ Division 3 of Part VB providing for the Remission of Sentences of the Prison Act specifically provides the remission orders for prisoners sentenced to life imprisonment, and Article 50O provides for its application, i.e., this Division shall apply to a prisoner who is sentenced to life imprisonment, for an offense committed on or after 21st August 1997, whether or not he is also sentenced to one or more terms of imprisonment; or a prisoner whose sentence of death for an offense committed on or after 21st August 1997 is, or has been, commuted to life imprisonment under Section 334 of the Criminal Procedure Code (Cap. 68) or Section 238 of the repealed Criminal Procedure Code (Cap. 68.1985 Ed.); or a prisoner who is sentenced to be detained during the President’s pleasure under Sect. 213 of the repealed Criminal Procedure Code (Cap. 68, 1985 Ed.).²¹⁰ In accordance with Article 50P, where a prisoner to whom the Division applied has served 20 years of his sentence, the Minister shall review the prisoner’s case and may, at the Minister’s discretion, direct the Commissioner to make a remission order in respect of the prisoner.²¹¹ In another words, the prisoner whose sentence is life imprisonment may be granted remission and released after serving 20 years of his or her life sentence in prison. Where the Minister has refused to direct the Commissioner to make a remission order in respect of a prisoner, the Minister shall, unless the prisoner is released earlier from imprisonment, review his decision at intervals not exceeding 12 months each and may, at his discretion, direct the Commissioner to make a remission order in respect of the prisoner.²¹² When a remission order is made, any default sentence to which the prisoner was sentenced shall be remitted; the sentence of life imprisonment and any other sentence of imprisonment imposed on the prisoner shall be suspended and the sentence shall be remitted when the remission order expires.²¹³

5.5.2.3 Long-Term Imprisonment in Some States: Taking Norway and Portugal as Examples

Many states have not only removed the death penalty from their penal system, but also outlawed life imprisonment. According to the report “Cruel and Unusual: U.S. Sentencing Practices in a Global Context”, “thirty three countries set maximum sentences at a limited number of years.”²¹⁴ In addition, Norway and Iceland are also among those countries that have already abolished the death penalty and life imprisonment. Even though long-term imprisonment is not in fact life imprisonment, a joint long-term imprisonment in some cases may be beyond the duration of a person’s natural life; conversely, even though a prisoner may be sentenced to life imprisonment, he or she may be released earlier after serving a certain number of years of the sentence; in other words, he has served a long-term imprisonment de facto rather than imprisonment for life. Therefore, this section will analyse long-term imprisonment and take long-term imprisonment in Norway and Portugal as an example.

• (1) The prevalence of long-term imprisonment. Long-term imprisonment in these three states is the maximum penalty and also the severest punishment, and, generally, it is only provided for the serious crimes. The Penal Code of Norway provides that the ordinary penalties include imprisonment, preventive detention, detention, community sentences, fines and the loss of such rights as are referred to in Sections 29 and 33.²¹⁵ Imprisonment may be imposed for a term ranging from 14 days to 15 years, or in the cases dealt with in Sections 60a, 61 and 62 for a term not exceeding 20 years, and in cases in which it is specially provided, for a term not exceeding 21 years.²¹⁶ Imprisonment in this Penal Code means imprisonment for a limited period unless it is otherwise expressly stated.²¹⁷ Section 62 provides that “if any person has by one or more acts committed more than one felony or misdemeanour punishable by imprisonment or detention, a joint custodial sentence shall be imposed which must be more severe than the highest minimum penalty prescribed for any of the felonies or misdemeanors and must in no case be more than twice the highest penalty prescribed for any of them.”²¹⁸ In another words, the joint sentence of imprisonment cannot be more than 42 years for these special cases. Based on a thorough analysis of the Norwegian Penal Code, the longest term of imprisonment dealt with by various provisions for some felonies is described in two ways, i.e. “not exceeding 15 years” and/or “not exceeding 21 years”. These two expressions will be taken as the standard when analyzing long-term imprisonment in the Penal Code of Norway, in which there are 33 provisions providing for felonies punishable by long term imprisonment.²¹⁹ These account for 9.42% of a total of 350 provisions dealing with felonies and misdemeanors in Parts II and III of the Penal Code. Among these 34 provisions, there are 8 providing for felonies against the independence and security of the State, 8 for felonies against public safety, and 6 for felonies in the public service.

Turning to the Penal Code of Portugal, the duration of imprisonment is also strictly provided for, i.e. the “imprisonment penalty usually has the minimum duration of one month and the maximum duration of 20 years and in the cases prescribed by law the maximum limit of imprisonment is 25 years and in no case should be exceeded.”²²⁰ In this case, it seems that the maximum duration of imprisonment in Portugal is longer than in Norway. Furthermore, the Portuguese Penal Code provides that if the perpetrator has committed several crimes before the sentence for any of them has become definite, he or she will be sentenced to a single penalty, and the applicable penalty will be the sum of the penalties concretely applied to the various crimes as a maximum limit, without exceeding 25 years in the case of imprisonment.²²¹ Under this provision, the maximum duration of a joint sentence of imprisonment is 25 years, in another words, if the perpetrator is given a joint sentence of imprisonment for his or her various crimes, he or she will be released after serving 25 years of the sentence in prison. In the Portuguese Penal Code, there are four long terms, serving as the maximum penalty, stipulated respectively for various relatively serious crimes, i.e., “less than 15 years”, “less than 16 years”, “less than 20 years” and “less than 25 years”. It therefore may be argued that a prison sentence of more than 15 years counts as long term imprisonment. Under these standards, we can see there are 21 provisions dealing with crimes punishable by imprisonment for more than 15 years in the Portuguese Penal Code,²²² which account for 8.20% of a total of 256 provisions dealing with crimes in the Specific Part of the Penal Code. Among these 21 provisions, there are 5 provisions dealing with crimes against national independence and integrity (Dos crimes contra a independência e a integridade nacionais), 3 with crimes against national military and defence capabilities (Dos crimes contra a capacidade militar e a defesa nacionais), 3 with crimes against humanity (Dos crimes contra a humanidade), and 3 with crimes against personal liberty (Dos crimes contra a liberdade pessoal).

• (2) Conditions for passing a sentence of long-term imprisonment. In the Norwegian Penal Code long-term imprisonment not exceeding 21 years cannot be imposed on a perpetrator who is younger than 18 years when he or she commits the crime, and the penalty should be reduced to lighter one. Section 55 states that “for criminal acts committed before reaching 18 years of age imprisonment … an imprisonment for a term exceeding 21 years cannot be imposed, and the penalty may without altering the form thereof be reduced below the minimum prescribed for the act, and when circumstances so indicate, to a milder form of penalty.²²³ In Parts II and III of the Norwegian Penal Code, long-term imprisonment is mainly imposed on the perpetrator in two cases: (1) long term imprisonment can be applied for action crimes. This situation is also the same with the above-mentioned life imprisonment in the abolitionist and retentionist states. In this case, long term imprisonment may be imposed on the perpetrator if he or she has committed certain criminal behaviour prescribed in the relative provisions in the Penal Code; for example, Section 83 provides that any person who unlawfully attempts to cause Norway or any part of the realm to be brought under foreign rule or incorporated into another State, or any part of the realm to be detached, or who aids and abets thereto, shall be liable to imprisonment for a term of not exceeding 21 years.²²⁴ In addition, this case can also include Sections 86, 100, 117a (not exceeding 15 years), 148, 151a, 153 and 225. These account for 24.24% of a total of 33 provisions dealing with crimes punishable by long term imprisonment. They also concentrate mainly on felonies against the independence and security of the State, felonies against the constitution of Norway and the head of state, felonies concerning the exercise of civil rights and felonies in the public service. (2) Long term imprisonment can be applied to an offender under certain legally-prescribed circumstances according to the law. The circumstances may include criminal behaviour causing heavy damage to the country or death, or resulting in severe damage to the defence of the realm, or the death of or serious injury to the body, or causing other results, as, for instance, described in Sections 84, 86b, 88, 102, 110, 117a, 147a, 152, 153, 154, 231, 268 and 317. It can also be applied to criminal behaviour which obstructs public authority, or causes serious interference with public servants, as, for example in Section 97; and where the criminal behaviour is committed by the use of special instrument or methods, such as armed force or by exploiting fear of intervention by a foreign power as, for example, in Sections 98; 232, 233 and 245.²²⁵ As for crimes punishable by long term imprisonment in the Portuguese Penal Code, the applicable conditions for long term imprisonment can also be divided into two cases: (1) long term imprisonment can be applied for action crimes. This kind of action crime, generally, includes serious crimes, for example, murder as provided in Article 131, slavery (keeping another person in the state or condition of a slave) as provided in Article 159, genocide (intent to destroy, in whole or in part, a national, ethnic, racial or religious group) as provided in Article 239, and 5 other provisions.²²⁶ These account for 38.10% of a total of 21 provisions. (2) Long term imprisonment can also be applied to an offender under certain legally-prescribed circumstances according to the law. These legally-prescribed circumstances include criminal behaviour resulting in the victim’s death or causing other danger or harm to another person or to the public. Article 132, for example, provides for the crime of homicide where another person is killed in circumstances that show perversity²²⁷; Article 158 provides that “if deprivation of liberty results in the death of the victim”.²²⁸ These kinds of legally-prescribed circumstances also include the criminal means; for example Article 160 deals with a crime committed “by means of violence, or threat”,²²⁹ and Article 214 with “damage with violence”.²³⁰ In all, there are 12 provisions legally prescribing circumstances as the applicable conditions for long term imprisonment, accounting for 57.14% of a total of 21 provisions.

• (3) Termination Mechanisms for long-term imprisonment. With long-term imprisonment the prisoner or inmate can normally be released from the institution where they serve their sentence when the period of the sentence expires. However, there is another circumstance in which the inmate or prisoner can be released early. Section 39 provides that “release before expiry of the period of preventive detention shall be effected on probation with a probation period of from one to five years”²³¹; when the convicted person or the prison and probation service applies for release on probation, the prosecuting authority shall submit the case to the District Court, which will decide it by a judgment²³²; if the prosecuting authority consents to a release on probation, the prison and probation service may decide on such a release²³³; when a release on probation is effected by the court such conditions may be imposed as in the case of a conditional sentence prescribed in the Penal Code; the court may also impose a condition to the effect that the convicted person shall be followed up by the prison and probation service.²³⁴ Section 42 of the Norwegian Execution of Sentences Act makes a further regulation, which prescribes that “the Correctional Service may release a convicted person on probation when the said person has served two-thirds of the sentence and not less than 60 days, including any period spent remanded in custody.”²³⁵ According to this provision, the inmate or prisoner who is sentenced to long-term imprisonment may be released early after serving two-thirds of the sentence in the prison or in custody. If half the sentence of imprisonment and not less than 60 days in prison has been served, including any period spent remanded in custody, the Correctional Services may release a convict on probation if there are special reasons for doing so.²³⁶ However, a convict who has been sentenced abroad to imprisonment for a term exceeding 21 years, and who is transferred to Norway to serve the sentence there, may be released on probation after serving a term of not less than 14 years’ imprisonment.²³⁷ According to the Annual Report 2015, 12 inmates or prisoners were released from prison after serving 10—15 years of their sentences; and 51 inmates or prisoners, accounting for 0.8% of the total prison population, were released after serving 5—10 years of their sentence in prisons.²³⁸ In the same year, 24 convicted persons were sentence to imprisonment for 15—17 years, according to the Annual Report 2015.²³⁹ In comparison, the Portuguese Penal Code provides that “until two months before reaching the minimum limit of the relatively undetermined penalty, the prison administration sends the court its grounded opinion about the concession of conditional release;”²⁴⁰ and, with the convict’s consent, the court sets him or her at conditional liberty when two-thirds of the penalty, and a minimum of six months, has been fulfilled. This can only occur if, considering the circumstances of the case, the perpetrator’s previous life, and his or her personality and its evolution during the time of imprisonment, it is reasonable to expect that when at liberty the convict will live his or her life in a responsible social way, without committing crimes.²⁴¹ If the conditional release is not granted, or is revoked, provisions dealing with security measures, such as cessation and prorogation of internment, and liberty on probation will apply.²⁴² Furthermore, under Article 127, the penalty may also be annulled by amnesty, by general pardon and by indult. According to the Portuguese Constitution, the Assembly of the Republic of Portugal has the power to grant generic amnesties and pardons.²⁴³ According to the Portuguese Annual Internal Security Report 2016 (Relatório Anual de Segurança Interna 2016), as of 31st December 2016, there were 13,799 prisoners serving their sentences in different Portuguese prisons, and around 5% of the 13,799 prisoners were sentenced to imprisonment for more than 12 years but less than 20 years, with 2.5% of them serving sentences of between 20 and 25 years.²⁴⁴

5.5.3 International Documents Relating to Life Imprisonment

Life imprisonment is, to a great extent, the most serious punishment after the death penalty because it removes the offender’s right to hope for rehabilitation. Although there is no international convention, covenant or treaty directly stating that life imprisonment violates human rights, as Justice Kennedy said in the case of Graham v. Florida, “by denying the defendant’s the right to reenter the community, the State makes an irrevocable judgment about that person’s value and place in society.”²⁴⁵ In the light of the judgments of the ECtHR, life imprisonment, in particular life imprisonment without possibility of release, may appear to be a torture and so violate the convention, covenant or treaty on human rights. Article 5 of the Universal Declaration of Human Rights provides that:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.²⁴⁶

In addition, the first part of Article 7 of the ICCPR states the same. Article 3 of the ECHR also provides that:

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.²⁴⁷

Based on Article 3, the ECtHR has already dealt with several cases involving life imprisonment. In these cases, LWOR is considered to violate Article 3 and to be inhuman, and, to a great extent, this reflects the development of thinking on life imprisonment in Europe, and even around the world. As for juveniles, Article 37a of the UN Convention on the Human Rights of the Child (hereinafter: CHRC) directly prohibits Life imprisonment without parole for a criminal who is younger than 18.

No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offenses committed by persons below eighteen years of age.²⁴⁸

This is the only prohibition on life imprisonment for a child, and so far, there is no international provision prohibiting life imprisonment for adult criminals, although Article 110(3) of the Rome Statute of the International Criminal Court (hereinafter: ICC) provides that:

When the person has served two thirds of the sentence, or 25 years in the case of life imprisonment, the Court shall review the sentence to determine whether it should be reduced. Such a review shall not be conducted before that time.²⁴⁹

This therefore shows that LWOR is not favored by the ICC. In all, based on the above analysis, life imprisonment without possibility of parole or reduction, or a long-term penalty (de facto life imprisonment), is not favored by the international community, and protecting an offender’s right to hope will dominate international thinking.

5.6 Conclusion

The book believes that life imprisonment will be the most appropriate punishment option to replace the death penalty. Except for a few states which have abolished life imprisonment, most states provide life imprisonment in their criminal laws for serious crimes. Compared with other punishment measures, life imprisonment, generally, is a punishment which incarcerates the inmate in prison for the rest of his or her natural life, which thus removes the inmate’s right to hope, and so it is almost the severest punishment. In the light of this, we also can observe that the fact that it involves lengthy incarceration, that it is almost the severest penalty, and that it is only used for the most serious crimes represent three obvious and important characteristics of life imprisonment. Based on different criteria, life imprisonment includes three main types, LWOR and LWPR, (relating to the terminating mechanism of life imprisonment), life imprisonment with work and without work, as well as mandatory life imprisonment and discretionary life imprisonment, (relating to whether life imprisonment is the only or an alternative punishment for the crimes). Even though there are different types of life imprisonment, its effects are almost the same, and it normally and mainly impacts on three kinds of people, i.e., directly impacting on the inmate and his or her family, indirectly impacting on the victims and their family, and indirectly impacting on the public. All of these are the basic and brief theories about life imprisonment. In practice, most states stipulate life imprisonment in their Criminal Laws for serious crimes. In fact, three important factors need to be examined when we examine life imprisonment in the penalty system, i.e., the prevalence of life imprisonment in the criminal law, the conditions for passing a sentence of life imprisonment, as well as the terminating mechanism. This book does not only examine life imprisonment in China, but also analyzes life imprisonment in other states, including retentionist states such as Japan and Singarpore and in some abolitionist states such as various members of the EU; in addition, this book also examines long term imprisonment in some states. After analyzing life imprisonment in the law, this book also looks to the facts of its application in judicial practice. In addition, it also discusses various international conventions or treaties and other documents concerning life imprisonment, which mainly include the ECHR, the ICCPR and the Rome Statute of the International Criminal Court.