Discerning Penal Values and Judicial Decision Making: The Case of Whole Life Sentencing in Europe and the United States of America

Abstract

Interpretive policy analysis has shown the need for multifactorial accounts of the influences on penal policy and its underlying penal values. To date, it has focused largely on political and administrative decision making. This article argues that judicial decisions interpreting the compliance of penal policies with the constitutional and legal frameworks applicable in a state must also be considered when seeking to discern the nature of approaches to penal policy. The article posits that judicial decisions are important and useful indicators of penal values. To illustrate the point, the article examines the approaches of the European Court of Human Rights and the Supreme Court of the United States to whole life sentencing. By exploring the differences in penal values between Europe and the United States of America through the prism of judicial decisions, the article considers the possibilities and limits offered by examinations of judicial action as sources of understanding of penal values.

The Janus face of imprisonment: Contrasting judicial conceptions of imprisonment purposes in the European Court of Human Rights and the Supreme Court of the United States

“…How the SC and the ECtHR rationalise their actions, conceptualise the challenges they face, problematise the objects of their actions and define the proper ends and means of penal practice, are all ideational aspects of penal power that ought to be taken into consideration when analysing penal policy (Garland, 2006). In addition, judicial decision-making may be a symbolic indicator of the system approach to the purposes, the ideologies and the values of prison (Rogan, 2018;Whitman, 2003).…”

“…Duff, 2001;Kerr, 2019;Tonry, 2018). Also, despite the fact that in many countries courts hold power to administrate prisons, their decision-making, their conceptions of imprisonment purposes and their relevance to understanding penal culture has received relatively little criminological attention so far (Calavita and Jenness, 2015;Kerr, 2019;Rogan, 2018). On the one hand, as Kerr (2019) noted, sentencing scholarship emphasises the quantitative dimension of imprisonment without giving much attention to the subjective 'pains of imprisonment' (Hayes, 2018;Kolber, 2009).…”

“…This article aims to respond to Rogan's (2018) call for criminologists to apply greater scrutiny to the interpretation and application of judicial decision-makers. It will do so, by adopting a comparative perspective, aimed at answering the following questions: How do the ECtHR and the SC conceptualise the purposes of imprisonment, and how do they view the relevance of these purposes to prison conditions case law.…”

“…2 Comparative penological research broadened its scope in recent years from comparing quantitative imprisonment rates to the more general concept of 'punitivity' or 'punitiveness', including more qualitative approaches to prison conditions (Pratt, 2008;Snacken, 2015). Comparative penological perspective towards judicial decision-making can tell us a lot about penal 'culture', 'sensibilities' and 'constitutional imagination' (Garland, 2006;Lazarus, 2006;Rogan, 2018) beyond the historical (Howard, 2017;Kleinfeld, 2016;Whitman, 2003), sociological-cultural (Cavadino and Dignan, 2012;Garland, 2006), political (Simon, 2007), religious (Kleinfeld, 2016), class, ethnic (Garland, 2006) and human rights frameworks (Ploch, 2011;Van Zyl Smit, 2015).…”

“…Prison law is relentlessly apparent in prisons and may, among other factors, affect 'institutional' thinking and acting, and the way in which human rights principles are being viewed and applied by administrative and legal officials (Calavita and Jenness, 2015;Rogan, 2018). For example, exploring how judges visualise imprisonment purposes is important in order to draw an explicit line between what is entailed in imprisonment as a criminal sentence and what is entailed in the administration of the imprisonment ('personal' vs. 'residual' liberty) (Lazarus, 2006).…”