Should mandatory life imprisonment for murder be abolished?
NO:
Another man kills his partner by poisoning. He administers the poison slowly to detract suspicion from himself, inflicting greater pain upon his victim. He lies to the gardaí. At trial he attacks the character of the State witnesses. He argues every technical point. As the jury pronounces him guilty his only regret is that he has been caught.
Even though the High Court has recently upheld the mandatory life sentence in murder cases as constitutional, to most people the inherent unfairness of imposing the same sentence on these two people is manifest.
So why then is there such a resistance to change?
Well, firstly, it is said, the punishment fits the crime. The deliberate taking of a life is itself such a heinous event that we must always mark it by coming as close as we can to taking an eye for an eye. But treating all murders as one is difficult to justify when the circumstances of the offence and the defendant vary so widely.
Deterrent is another argument. But what of the many rows which occur late at night where one or both parties intoxicated with drink or drugs become angry over some relatively trivial event? Typically such offenders have a high level of dysfunctionality, and little stake in what the rest of us refer to as society. Deterrence is based on rational assessment and fear, qualities notably absent in such fracas.
The recent Law Reform Commission report, Homicide: Murder and Involuntary Manslaughter, is as usual an exhaustive and seminal study of the topic. In addition to recommending the abolition of the mandatory life sentence, it proposes broadening the definition of murder, to capture conduct which at the moment would only justify a conviction for manslaughter.
There is good reason underpinning this recommendation.
A life sentence is a harsh penalty and there can be little doubt it is recognised as such by juries. A frequent defence relied upon is that of self-defence and/or provocation. For instance, it is open to a jury to find manslaughter, if a defendant can show they were suddenly provoked by the person they killed, to the point that they completely lost control.
Because jury deliberations are secret, it is not possible to say precisely how a verdict is reached. However, anecdotal and empirical evidence suggest a jury may opt for manslaughter to avoid visiting a life sentence on an accused in what they regard as a hard case. Such cases often turn into a "blame game" in which the conduct of the deceased is to the fore, which, understandably, is greatly resented by family and friends.
Implicit in an unwillingness to embrace change is a fear that the courts would impose sentences that are too lenient. While gravity is a factor, the fear is that as the actual sentence must be tailored to the individual circumstances of the accused, this will inevitably result in a lesser penalty.
That cuts both ways. The courts are already handing down life sentences in rape and sexual abuse cases where the defendant represents an ongoing risk.
This fear is compounded by statistics which suggest that lifers "only" serve average sentences of about 13.86 years. But these figures are misleading. They are calculated by reference to a control group which consists only of prisoners who have been released. Excluded from the calculation, for instance, are John Shaw and Geoffrey Evans (1974), Malcolm Macarthur (1982), and Michael McHugh and Noel Callan (1985).
It is surely no coincidence that these long-serving prisoners have all committed murders which are regarded as politically sensitive. A fixed prison term has the attraction of transparency which the mandatory life sentence does not provide.
The number of murders in Ireland is low by international standards. The typical offender is often highly marginalised. There has been a disproportionate attention on gangland killings. The effect of this has been that most people see this as an issue which does not affect them or people close to them. Experience shows that in such circumstances empathy is likely to be in short supply, and with it a desire to change.
Sentencing is not an act of revenge. A trial can be a traumatic process, particularly for relatives. Allowing a court to fix the appropriate sentence in individual cases would undoubtedly result in more people pleading guilty to murder. The callous murderer cannot expect to receive any benefit.
There is much to commend the Law Reform Commission proposal. It is to be hoped that politicians can debate the issue maturely, without accusing each other of being "soft" on crime.
Charles Flanagan is a Fine Gael TD for Laois-Offaly and his party's spokesman on justice.
