History of life imprisonment

In the history of life imprisonment or life incarceration, where all or most of a person's remaining life is spent imprisoned, its purpose has chiefly been as an alternative to the death penalty or exile. The phrase life without parole is commonly used in the United States whereas in the United Kingdom, the concept of incarceration for life without the prospect of release is known as a whole life tariff.

In early history when the death penalty was not uncommon, life imprisonment was a boon granted to nobility or used for political gain. The motivations for imprisonment were usually punative, or coercive, with the alternative of the death penalty never far from the offenders mind. As a result, life imprisonment seems to have been fairly rare.

Due to the gradual improvements in the judicial codes, detention was used for custodial and, as appeared later, reformatory purposes. Even though the laws have provided for life imprisonments since early times, there are few recorded examples of it occurring, probably due to the high costs of imprisonment making death a more practical solution.

In modern times, with the death penalty becoming less socially acceptable, life imprisonment has become the accepted method of dealing with severe criminality.

The emergence of incarceration

Once private jurisdictions began to emerge around the eighth century in England, some kind of prison may be said to exist. In Alfred the Great's time, circa 890, the word 'prison' ("carcerr") first makes its appearance in a code of laws. [ R. B. Pugh, Imprisonment in Medieval England, (1968) at p. 1. ] Punitive incarceration is known in those times, but sentences were short, with the maximum usually being a year and a day. Pugh makes the point that mutilation, death, outlawry, and, above all, compensation in cash were proper punishments, since detaining the body of the prisoner was costly to the captor.

Life imprisonment is rarely mentioned in the early documents. Professor Pugh mentions a "somewhat obscure passage" which says that a man who appended a false seal to a document which had been warranted or was found in possession of such a document might in some circumstances be imprisoned for life. [Fleta, II, at p. 58.]

It does not say whether anyone was sentenced thus, nor whether they completed their sentences. Though Pugh says that "(t)here is no positive evidence of a term longer than three years," [Pugh, supra, at p. 30.] kidnappers in 1285 could suffer perpetual imprisonment, and an indefinite sentence was empowered in 1361 for a juror who accepted a bribe. Indefinite imprisonment was prescribed as the penalty for an offender who made arrows with unsuitable points. This is around the time the stout British Yeoman was preparing to win the Battle of Agincourt.

Pugh doubts whether long sentences were ever served.

In the vast majority of instances the sentences imposed for the type of fraudulent or vexatious offence described above were prima facie of indefinite duration. It is hardly to be supposed that they were often allowed to run for any great length of time. Fines often brought them to a close. [Pugh, supra, at p. 14. ]

The frequency with which the documents record such fines led Maitland to believe that imprisonment in these circumstances was fictitious and served merely as sanction for the payment. [Pollock & Maitland, History of English Law, II, at p. 517. ]

The reasoning behind the imposition of penal imprisonment remains a mystery. Professor Pugh states that "a fascinating investigation awaits the student who will take a much shorter period of time than that covered by this book and try to determine the philosophy favored by contemporaries in imposing social punishment." [ Pugh, supra, at p. 41. ]

Death by imprisonment

Though convicts and the captured were rarely sentenced to life imprisonment, it was nevertheless not unusual for the imprisoned to spend the duration of their lives in prison. Death in prison was a remarkably common event. [Pike, A History of Crime in England, Illustrating the Changes of the Laws in the Progress of Civilization (1983), at p. 287. ] Prison conditions at the time made even a brief period of incarceration a threat to the life and health of the prisoner.

One of the most severe forms of death was in an oubliette (from the french word "oublier", "to forget", a tiny cell deep underground with a long, narrow shaft). The prisoners were lowered into or dropped in. Food might occasionally be tossed in to them and they had to stay until their death. [ A. E. Weiss, Prisons: A System in Trouble (1988), at p. 23. ]

It was easy to be forgotten in the medieval penal system. There is recorded in 1351, an order to the chief justice of the King's Bench, to find out the causes for the detention in the Tower of London of four men, one of whom had been there for seven and a half years and another for four. [Pugh, supra, at p. 389 ] As is common in record of the duration of punishment, the outcome is not known, but release by the Crown was common if the prisoner survived.

Even into the eighteenth century prisoners records were uncertain. Prisons were run for profit, and wardens bought and sold their offices. Thomas Bambridge, Warden of Fleet Prison, was tried for murder of his charges in 1729. He confessed that he had never kept any lists or records of his prisoners, and when one of them was discharged, the fact was never entered into an official register. [ Babington, (1968), at p. 89. ]

Many prisoners did not survive even short sentences. Prisoners were responsible for their own feeding; indeed, there were taverns inside the walls of the Tower of London where prisoner's servants (who stayed in the Tower with their masters, but were allowed in and out) purchased their food and liquor, the last one of which, "The Gold Chain," was demolished in 1843. [J. E. N. Hearsey, The Tower: 880 years of English History, (1960) at p. 227. ] Prisoners in towns far from their homes and beyond the reach of friends easily could starve to death. In 1323 hunger was a contributory case of the death of seven people shut up in Northampton Castle. [Pugh, supra, at p. 319, quoting Sel. Cases from Coroners' R. (Selden Soc. IX), 79-81. ] Edward III complained in 1341 to the Mayor of London that the Newgate gaol was "so full of prisoners that they are continually dying of hunger and oppression." [Babington, (1972), at p. 25. ]

Cold is sometimes mentioned as a cause of death in coroners' inquisitions and was an obvious peril. [Pugh, supra, at p. 327 ] Lack of hygiene and faulty sanitation caused frequent typhoid epidemics, and it is recorded that in 1419 in Newgate Prison, sixty-four prisoners, as well as the keeper, died.

Long Imprisonment Was Rare

Long terms of penal imprisonment are rarely recorded. Charles I de Valois, Duke of Orléans spent the longest time in the Tower as recorded, from 1415 to 1440, before he was ransomed. [ J. E. N. Hearsey, The Tower: 880 years of English History, (1960) at p. 45. ] The Duke's sentence was coercive rather than penal imprisonment, since he was an Agincourt prisoner of war, and fifty thousand pounds was enough to effect his release. He remarked afterwards, "For the weariness, danger, and displeasure in which I then lay, I have many times wished I had been slain where they took me."

Frequently prisoners found other ways to shorten their sentences. Escape was comparatively easy, and sensationally common. [Pugh, supra, at p. 387 ] A prisoner could effect a type of release by losing his mind under the harsh prison conditions. After eight or nine years of close confinement in the Tower, with a bird, a dog, and William Kimberly as companions, and even with visitors privileges, Henry VI degenerated into a near idiot. [J. E. N. Hearsey, The Tower: 880 years of English History, (1960) at p. 50. ]

Abjuration was a possible remedy for heinous offenses. A miscreant could take sanctuary in a recognized churchyard (of which there were about thirty in England) and make an oath of abjuration within forty days. He could then leave the kingdom unhindered provided he elected to undergo perpetual banishment in any foreign, Christian country. This was abolished in 1566. [Babington, (1968), at p. 74 ] In 1597 Parliament passed the first statute to authorize banishment. No official records are in existence showing the number of persons who were actually banished during the period. In 1619 James I mentions that one hundred prisoners had been sent to Virginia.

By Charles II's time, the word "transportation" was being used. Transportation ensued when a felon's death penalty was pardoned on condition that they agreed to be transported overseas.

But transportation, to Ireland, to the colonies, and later, to Australia and Tasmania, was rarely for life. More often it was for a term of years, either seven or fourteen, with fourteen the default sentence. Duration was moot if the prisoner died on the way to the colony, as many did, or never found passage back, as many also did not. In any case, a prisoner who returned to Britain before the expiration of his sentence was liable to suffer instant death.

Britain lost the American Colonies for transportation purposes in 1776. The appalling conditions of the penal servitude, combined with the resistance of the free Australian residents, brought the entire practice of transportation to a halt in 1867. This was well after Mr. Wells received his sentence of life imprisonment in Washington's Penitentiary.

Prisons in the United States

Prisons in the United States go back to Colonial Pennsylvania in their origins. The first assembly of Penn's colony in 1682 had enacted a system of laws punishing most crimes with hard labor in an "House of Correction", giving the death penalty only for first-degree murder. The Walnut Street Jail dates from 1773.New York followed Pennsylvania's liberalizing lead, revamping its old methods of punishment in 1796. [W. D. Lewis, From Newgate to Dannemora: The Rise of the Penitentiary in New York, 1796-1848, (1965) at p. 1. ] Previously, in New Amsterdam, if jail sentences were imposed, they usually supplemented other punishments or lasted but a short time. [Lewis, at p. 13. ] But 1796 saw the founding of Newgate Penitentiary in what is now Greenwich village, receiving felons under the new penal code.

A convicts life was one of hard labor. The prison shops made Newgate a relatively prosperous industrial unit. But, as was to be the fate of other American Penitentiaries, political instead of professional control of the staff, combined with low staff salaries, unsystematic funding, and above all, overcrowding, [Lewis, at p. 39-41 ] impacted negatively on discipline and morale. Conditions degenerated towards slavery. In order to keep from tripling the population over designed capacity, pardoning power was frequently used. This took the threat out of long sentences.

Labor may have been hard, but sentences were not long. Women's sentences "ranged up to fourteen years." [Lewis, at p. 163. ] "To be a female convict," said Chaplain B.C. Smith, "for any protracted period, would be worse than death." [C. M. Young, Women's Prisons Past and Present and Other New York State Prison History (1932), p. 4. ]

Reform

Reacting to the squalor in the penitentiaries, another wave of reform swept the country in the 1860. Reformation replaced penitence as the key word in American penology. Prisoners were to be held only until the institution had done its job, until the prisoner had been reformed. The concepts of parole and indeterminate sentencing were regarded as forward looking in the 1870's. However, crime was not eradicated. Reformatories had the same problems of political appointment and underfunding.

A third problem turned out to be indeterminate sentencing. Prisoners quickly found that if they could learn to beat the system they stood a better chance of winning parole. Beating the system was not difficult: say the kind of words wardens and parole boards wanted to hear, act like the kind of person they wanted to see, hide anger and resentment behind a facade of genuine reform -- this, inmates discovered, was the surest path to early freedom. No wonder so many of them were soon back in custody. Another problem with indeterminate sentencing was that prison authorities also learned to twist it to their advantage, The authorities did not hesitate to deny parole, even to those who deserved it, if they thought doing so would serve their own purposes. . . .

But the biggest cause of the reformatories' failure to live up to expectations was a matter of attitude. Despite the enthusiasm reformers felt for indeterminate sentencing and for prison education and job-training programs, despite Brockway's stirring call for an end to vengeance in criminal justice, the people inside each prison -- inmates and guards alike -- never stopped seeing prison as a place of retribution. [A. E. Weiss, Prisons, A System in Trouble (1988), at p. 29-30. ]

In 1954, Master Sergeant Maurice L. Schick was convicted by a military court-martial in the brutal murder of an eight-year old girl, and sentenced to death, the ultimate penalty. Six years later, the case was forwarded to Pres. Eisenhower for final review, and he commuted his sentence to confinement at hard labor for the term of his natural life, on the express condition that he "shall never have any rights, privileges, claims or benefits arising under the parole and suspension or remission of sentence laws of the United States . . ."

Sgt. Schick began a legal challenge in 1971 which eventually reached the Supreme Court, questioning the constitutionality of his punishment: Life Imprisonment Without Parole. [Schick v. Reed, 419 U.S. 256 (1974).] The court decided that to be so sentenced was constitutional, though Schick's sentence was given only cursory mention. [ J. H. Wright, Jr, Life Without Parole: An Alternative to Death or Not Much of a Life At All? 43 Vand. L. Rev. 529, 535 (1990). ] Schick's ultimate fate is unknown [Social Security records report two deceased Maurice Schicks, neither apparently incarcereated ] though, had he been given an ordinary life sentence, he would have been eligible for parole in 1969.

Despite the "Schick" opinion's lack of thorough analysis regarding LWOP [Life-Without-Parole] , an imposing amount of precedent has developed based upon it. [ Wright, supra, at p. 536. ] After Furman v. Georgia, [408 U.S. 238 (1972). ] which put the constitutionality of the death penalty in question, LWOP received increased attention from lawmakers and judges as an alternative to the death penalty.

Courts are now using this sentence for crimes other than murder. Particularly in vogue is LWOP for "drug kingpins" and "habitual criminals." It has been applied in every state except Alaska and New Mexico [ [http://64.233.169.104/search?q=cache:wd3kwrq7nVgJ:www.deathpenaltyinfo.org/article.php%3Fdid%3D555%26scid%3D59+lwop&hl=en&ct=clnk&cd=5&gl=us] ] , as well as in the federal courts. [Wright, supra, at p. 559. ]

A 2005 survey by The New York Times found that about 132,000 of the nation's prisoners, or almost 1 in 10, are serving life sentences. In 1993, the Times survey found, about 20 percent of all lifers had no chance of parole. By 2004, the number rose to 28 percent. [ [http://www.nytimes.com/2005/10/02/national/02life.web.html?_r=2&pagewanted=1&sq=To%20More%20Inmates,%20Life%20Term%20Means%20Dying%20Behind%20Bars&scp=1&oref=slogin To More Inmates, Life Term Means Dying Behind Bars - New York Times ] ] As a result the United States is now housing a large and permanent population of prisoners who will die of old age behind bars. At the Louisiana State Penitentiary in Angola, for instance, more than 3,000 of the 5,100 prisoners are serving life without parole, and most of the rest are serving sentences so long that they cannot be completed in a typical lifetime. About 150 inmates have died there in the last five years.Ibid.]

Life Imprisonment without Parole

Such penalties have been imposed before. [see Green v Teets, 244 F2d 401 (9th Cir. 1957); United States v. Ragen, 146 F2d 349 (7th Cir.), cert denied, 325 U.S. 865 (1945); and State v. Dehler, 257 Minn. 549, 102 N.W.2d 696 (1960). ] One early American case was Ex Parte Wells. [18 How. 307 (1856). ] Wells was convicted of murder in 1851, and sentenced to be hanged. On the day of his execution, President Fillmore gave him a conditional pardon, and commuted his sentence to "imprisonment for life in the penitentiary at Washington." Wells appealed the conditionality of his pardon. The sentence was upheld, with no discussion by the majority of the purpose of the substituted punishment.

The dissent brings up the irony of the substitution:

"It is insisted that the President had power to reprieve from the sentence of death. This is admitted; but no reprieve has been granted. On the contrary, an act has been done, entirely inconsistent with a reprieve, as that only suspends the punishment for a fixed period. . . . It is a perversion of the facts to say that Wells has been reprieved by the president . . ."

Wells was still under sentence of death, that is, death by confinement. Wells does not appear further in the literature, and his ultimate fate is unknown.

This is the fate of most prisoners in history, however, who have been given the penultimate penalty, what in former times was referred to as "perpetual imprisonment."

There were no English books on the subject of life imprisonment without parole in English before 1987. [L. S. Sheleff, Penalties: Capital Punishment, Life Imprisonment, Physical Torture (1987) at p. 89.]

Rehabilitation

Recently institutions favoring rehabilitation and treatment have become popular. In 1955, a model "total treatment facility" for the criminally disturbed opened in Jessup, Maryland. Prisoners were to be released only after psychiatrists had certified that they had been reformed. Twenty years later, a Maryland Court ruled that conditions there violated the Eighth Amendment's prohibition against cruel and unusual punishment. And of course such modern treatment of rehabilitation would be pointless for the LWOP prisoner. What would be the purpose of his rehabilitation if he was slated to die in prison?

It was estimated that it cost $17,324 to keep an inmate in prison in 1984. In 1986 the annual cost per inmate on Rikers Island was reported to be about $43,000 [Weiss, supra, at 106. ] , the same as California in 2006 [ [http://dsc.discovery.com/convergence/koppel/highlights/highlights.html Koppel on Discovery : Program Highlights : Discovery Channel ] ] , the same cost of a year tuition room and board at Harvard University. By a conservative estimate, it costs $3 billion a year to house America's lifers. And as prisoners age, their medical care can become very expensive. [NY Times, supra]

ummation

Life Without Parole is essentially a recent invention in the long history of incarceration. As Shaw said, no one seems to have invented it, nor have thought much about what it means. Its chief desirable attribute is that it is not the death penalty. It seems to attract those merciful types who have moral qualms about actively taking human life. As Shaw wrote "I thought, and still think, imprisonment for life a curious sort of mercy." [Shaw, at p. 7 ]

It differs from the death penalty in that it is applied slowly, excruciatingly slowly. With modern health care, people could be serving prison sentences in lengths that were unimaginable in the days of the rack, the thumbscrew, the gibbet, drawing and quartering, disemboweling and burning. Shaw wrote,

Imprisonment is as irrevocable as hanging. Each is a method of taking a criminal's life; and when he prefers hanging or suicide to imprisonment for life, as he sometimes does, he says, in effect, that he had rather you took his life all at once, painlessly, than minute by minute in long-drawn-out torture. You can give a prisoner a pardon, but you cannot give him back a moment of his imprisonment.

Shaw also points out long imprisonment wastes not only the lives of prisoners, but of his keepers:

If you treat the life of the criminal as sacred, you find yourself not only taking his life, but sacrificing the lives of innocent men and women to keep him locked up. . . The moment we face it frankly we are drive to the conclusion that the community has a right to put a price o the right to live in it. That price must be sufficient self-control to live without wasting and destroying the lives of others. . . . It was a horrible thing to build a vestal virgin into a wall with food and water for a day; but to build her into a prison for years as we do, with just enough loathsome food to prevent her from dying is more than horrible: it is diabolical. If no better alternatives to death can be found than these, then who will not vote for death? If people are fit to live, let them live under decent human conditions. If they are not fit to live, kill them in a decent human way.

See also

* Exile
* Capital punishment

Bibliography

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References