Discerning Penal Values and Judicial Decision Making: The Case of Whole Life Sentencing in Europe and the United States of America
| DOI | http://doi.org/10.1111/hojo.12251 |
| Author | MARY ROGAN |
| Date | 01 September 2018 |
| Published date | 01 September 2018 |
The Howard Journal Vol57 No 3. September 2018 DOI: 10.1111/hojo.12251
ISSN 2059-1098, pp. 321–338
Discerning Penal Values and Judicial
Decision Making: The Case of Whole
Life Sentencing in Europe and the
United States of America
MARY ROGAN
Associate Professor, School of Law, Trinity College, University of Dublin,
Dublin, Ireland
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.
Keywords: comparative law; human rights; judicial decision making; penal
policy making
Introduction: Judgments and Discerning Penal Values
One of the most attractive features of interpretive policy analysis, as Anni-
son demonstrates, is its ability to provide a detailed and nuanced account
of how the actions of policy makers interact with, shape, and are shaped
by, broader social and cultural forces (Annison 2014, 2015, and article in
this special issue). Interpretive policy analysis seeks to diversify the sources
which permit us to draw conclusions about a state’s approach to criminal
justice and penal policy. While we now know more about the mechanics
of policy transfer, the views and actions of civil servants, and the activi-
ties of lobby groups (Jones and Newburn 2002, 2007; Loader and Sparks
2004; Newburn and Sparks 2004; Ryan 1978, 2003), one source of po-
tentially transformative thinking and action – courts engaged in assessing
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2018 The Howard League and John Wiley & Sons Ltd
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK
The Howard Journal Vol57 No 3. September 2018
ISSN 2059-1098, pp. 321–338
challenges to various laws and policies – has been subject to less analysis.
This is so, despite the fact that in many countries, it is in the hands of
members of the judiciary that the ultimate power to strike down a law
lies.
As well as having direct impacts on how policy is applied, the decisions of
judges can also be read as indicators of a society’s approach to punishment.
Taking inspiration from socio-legal scholarship which seeks to explore the
social context and meaning of laws and judicial actions, the article submits
that laws and judicial rulings are especially useful sources by which to carry
out an examination of societal values in the field of punishment. When a
policy decision or penal practice is litigated we see two arms of a nation’s
government (or, in the case of the European Court of Human Rights, a
supranational body and a state) engaged in what has been considered by
some scholars of constitutional law as a dialogue (see Allan 2017), by others
as a form of collaboration (Carolan 2016), aimed at discerning what con-
stitutional law requires in a particular instance. That interaction between
two branches of government on whether a policy or practice complies with
that nation’s laws can lay bare the legal and political values behind those
policies and practices (on this relationship see further, Geiran (2017)). Ju-
dicial decisions, therefore, can give us information on fundamental legal
and constitutional conceptions of what punishment is and should be for,
how it ought to be administered, and the limits of tolerance for particular
kinds of punishments.
This article does not contend that those rulings are unproblematic rep-
resentations of societal values, nor that there is a mechanic or deterministic
connection between those values and the purported expression of them
in law. Rather, the article contends that laws are useful sources by which
we can interrogate and examine the values which they embody or seek to
express. When a challenge is made to a policy or practice on the grounds
that it infringes a nation’s constitution or set of human rights standards,
we see two streams of a country’s ‘sensibilities’ (Tonry 2004) analysed. We
may see a source of resistance to punitive policies in the courts (Vaughan
and Kilcommins 2008), suggesting that a set of principles exists in a nation
which will not tolerate certain practices, even if the executive or legislative
branches of government have sought to introduce and justify those prac-
tices. The position adopted by the courts, therefore, can represent another
way of thinking about the purposes of punishment, which should draw on
deep-seated societal values.
This article examines how judges have conceptualised, analysed, as-
sessed, and, to some extent, resisted, one of the most controversial and crit-
icised forms of penal sanction – that of imprisonment without the prospect
of release. It argues that those judicial decisions are sources of understand-
ing about penal values and deserve attention by all those wishing to explain
penal change and approaches to penal policy. A comparative legal analysis
of the decisions of the European Court of Human Rights and the Supreme
Court of the United States is offered, in order to bring the penal values
exemplified by both courts most sharply into light, and to provide another
perspective on the US-European divide concerning penal policy.
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2018 The Howard League and John Wiley & Sons Ltd
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