The Law on Conditional Release for Life-Sentenced Prisoners: Fake Warnings and Unforeseen Consequences

The Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine regarding the Substitution of Life Imprisonment with a More Lenient Punishment” was adopted by the Verkhovna Rada of Ukraine on 26 November 2015 (No. 847-VIII). This law provides for the possibility, by court decision, of applying conditional release to persons sentenced to life imprisonment. The President did not sign the law, opting instead to reject it.
This law sparked contradictory feedback. Some of it became the basis for its rejection. We believe it is worth examining and evaluating the main feedback regarding the law and the potential consequences of its rejection or adoption.

6 fake warnings regarding the conditional release of life-sentenced persons
1. Conditional release of life-sentenced persons violates the proportionality of the punishment to the crime committed.
If, according to the logic of the authors of this warning, reducing the court-determined term of punishment for life-sentenced prisoners through conditional release violates the proportionality of the punishment to the gravity of the crime, then applying amnesty and parole mechanisms to persons sentenced to a specific term of imprisonment must be considered the same kind of violation. These mechanisms also allow for the release of convicted persons earlier than the term determined by the court verdict. Yet, these mechanisms for reducing the measure of punishment have been applied smoothly, habitually, and for a long time, and are not considered a violation of the proportionality of punishment to crime.
One gets the impression that proponents of this warning lack consistency in their position when they deem it permissible for one person, sentenced for particularly grave crimes to 15 years’ imprisonment, to be released on parole after serving 11 years and 3 months of the punishment (3/4 of the term), while refusing to ever allow another person, also sentenced for particularly grave crimes but to life, to be released. Yet, there is no fundamental difference in the gravity of the crimes; there is only a “quantitative” difference.
We believe it makes sense to speak about the proportionality of punishment to the crime committed at the moment the punishment is assigned, but demanding the preservation of such proportionality in all life circumstances after 20 years have passed, while ignoring the influence of other factors, is, at the very least, highly dubious.
If one asks the question: what could be the true meaning of such a warning?—one of the most likely answers that comes to mind is this: such legal constructions are usually built in cases where there is an intention to create favorable conditions for corrupt actions.

2. Conditional release for life-sentenced prisoners provides an opportunity for maniacs and particularly dangerous criminals to be released.
The authors of this objection deliberately do not wish to see the difference between the right (possibility) to conditional release and its practical implementation. They distort the facts by presenting the existence of a theoretical possibility for life-sentenced persons to be released as a real, almost inevitable threat that such a possibility will be realized for any life-sentenced prisoner, including maniacs.
Yes, this law applies to all life-sentenced persons. However, conditional release should, of course, be carried out not automatically, but according to a specific procedure and subject to certain conditions. A decision on conditional release must be made by a court upon the motion of the penal institution’s administration. One should not consider the employees of penal institutions and courts to be so unprofessional as to assume that the former would decide that the conditional release of a maniac is possible and propose it by submitting the relevant documents to the court, and that a judge, if they were to receive such a motion, would make a decision to apply conditional release to a maniac. The practice of applying parole shows that not everyone who has the right to parole under the law is released. Every year, currently, only about 47% of persons eligible for parole are released, while at the same time, parole is denied to nearly 53% of persons.
Supporters of this warning somehow believe that the same approach is impossible with life-sentenced prisoners: that only those among the life-sentenced whom the court deems worthy and safe for society will receive conditional release. Thus, the claim that conditional release for life-sentenced prisoners provides an opportunity for maniacs and particularly dangerous criminals to be released is artificial and contradicts existing practice regarding early release. Unfortunately, about this objection, too, one can say: such legal constructions are usually built in cases where there is an intention to create favorable conditions for corrupt actions.
3. Introducing the possibility of conditional release for life-sentenced prisoners undermines the institution of life imprisonment.
And this claim is in no way explained or argued by the authors. It is not the result of research or even at least some kind of survey. It is not even clear how such undermining could happen or be expressed, how it should manifest, or by what indicator it could be determined or measured.
Regarding punishment in the form of imprisonment for a specific term, it can be stated: the possibility existing in legislation for criminals to eventually receive a punishment less than that provided for by the Criminal Code or that determined by the court—both through the application of amnesty and parole, and through the assignment of a probationary period where the criminal remains at liberty altogether—such a possibility does not undermine these punishments.
At the same time, these mechanisms of early release allow a convicted person the chance to reform, change their life, and lead it without breaking the law. And society is undoubtedly interested in this. Yet, supporters of this warning, with their position, deny this chance to life-sentenced prisoners.
It is appropriate to emphasize that the release of life-sentenced persons from serving their punishment after a certain period—sometimes a quite significant one—is a common modern practice in civilized countries. 13 years ago, such an approach by Council of Europe countries was recorded in the Recommendation of the Committee of Ministers of the Council of Europe 2003(22) “On Conditional Release”, clause 4a of which states:
4a. To reduce the harmful effects of imprisonment and facilitate the return of the prisoner to society under conditions that would guarantee the safety of society, conditional release should be legally available to every prisoner, including persons sentenced to life imprisonment.
The refusal effectively hinders Ukraine’s progress toward implementing European standards in the field of human rights observance. And therefore, the blatant unwillingness to heed this recommendation looks, at the very least, strange, if not to say—inadequate.

4. Introducing the possibility of conditional release for persons sentenced to life imprisonment... could negatively affect the state of crime.
The claim regarding a negative impact on the state of crime is also artificial and unsubstantiated. It resembles the argument from some time ago that the abolition of the death penalty would allegedly also negatively affect the state of crime.
In reality, experience suggests the opposite: according to the data of the Ministry of Internal Affairs of Ukraine, in 1996–2000, between 4,529 and 4,896 intentional murders were registered annually. After the abolition of the death penalty in December 1999, their number gradually decreased: to 4,041 in 2003; to 3,220 in 2006; and in 2010, there were only 2,356 murders (51% of the number in 1999) (http://ukrprison.org.ua/news/1384708537). Obviously, one can consider that the abolition of the death penalty did not negatively affect the murder rate.
It is worth noting that never and by no one has the mechanism of parole been considered a factor that contributes to the growth of crime. And this is understandable: the social roots of crime lie primarily not in the severity or leniency of punishments, and therefore it is impossible to influence crime by mitigating or, conversely, strengthening punishments.
There is no other explanation for this invented scare tactic than an attempt to intimidate—without sufficient grounds—the ordinary citizen. Such a position bears very little resemblance to a concern for public safety.

5. The introduction of conditional release for life-sentenced prisoners provides for more lenient conditions than those established for pardons.
Claims are also untrue that the introduction of conditional release for life-sentenced prisoners after they have served at least 20 years of imprisonment would mean that the law provides for more lenient conditions for resolving the issue of conditional release for a person sentenced to life imprisonment than those established for pardons.
Firstly, the very framing of the question is surprising: why should the conditions for granting a pardon be compared with the conditions for applying conditional release? Secondly, indeed, a condition for the conditional release of a life-sentenced person is that they have served at least 20 years of the assigned punishment. And when a life sentence is commuted as a result of a pardon, it is replaced by a term of no less than 25 years’ imprisonment. But in this case, the convicted person can apply for parole the very next day after the pardon, since the necessary 3/4 for this amounts to 18 years and 3 months, which they have already served. Thus, a person pardoned by commutation to 25 years’ imprisonment can now be released on parole as a person serving a sentence in the form of imprisonment for a specific term, having served a little over 20 years of punishment.



6. To release life-sentenced prisoners, it is sufficient to have the institution of pardons.
To believe that to release life-sentenced persons it is sufficient to have the institution of pardons is to not understand the essence of this institution at all. The practice of the Pardon Department indicates: sometimes there are cases when the served term of punishment by a convicted person—taking into account their behavior while in prison—can be considered adequate to the crime committed. However, to release a person through a pardon (that is, through showing them mercy on the part of the head of state) is not correct.
In the case of persons sentenced to deprivation of liberty for a specific term, this conflict has a resolution mechanism: a person can be released not through a pardon, but through parole. Life-sentenced persons are currently deprived of such an opportunity.
Release through a pardon carries a certain moral aspect—it is an expression of mercy toward a person who committed a crime, regardless of their guilt. Therefore, using a pardon simply as a release mechanism is not correct and not appropriate.

5 real consequences of the conditional release of life-sentenced persons that are not taken into account.

On the other hand, the refusal to introduce conditional release for life-sentenced persons has serious negative consequences.

1. The refusal denies a person the possibility to atone for their guilt and change for the better, because without a positive perspective, this is impossible. Taking away such a possibility from a person who has committed terrible crimes is not humane, not appropriate, not justified, and risky. A person has already been punished for their crimes with a lengthy deprivation of liberty. But is it worth depriving them of a future as well? Is society truly indifferent to whether a person repents or whether they try to change? Without a positive perspective, such positive changes in personality are hardly possible.

2. The refusal deprives institution personnel of levers of influence over life-sentenced persons through real incentives.
The absence of prospects for release for a life-sentenced person significantly narrows the possibilities for institution personnel to conduct resocialization work with the prisoner. Personnel are deprived of arguments to stimulate law-abiding behavior in the convicted person, because why would a person change anything in themselves for the better if the prospect of being in society is practically non-existent.
Such a psychological situation with a high degree of probability will contribute to the faster intensification of personality degradation processes. One of the negative consequences of such a process is an increase in the level of danger for the personnel who are in contact with life-sentenced prisoners.

3. Collective responsibility is introduced.
Such a refusal leads, in particular, to the fact that at least dozens of life-sentenced prisoners who have already served 20 years of punishment and could have been released under certain conditions without danger to society, have no legal mechanism for this. The logic by which, because particularly dangerous criminals (maniacs, etc.) are serving life sentences who should not be released under any conditions, those life-sentenced prisoners who are already safe for society and could be released should also sit for life is absolutely flawed. This is the actual introduction of a kind of “collective responsibility” for life-sentenced prisoners, where some bear responsibility for the gravity of the crimes of others. Such an approach can hardly be perceived as a legal factor. Therefore, such an option is undoubtedly harmful both for the convicted persons and for society.

4. Economic factor.
Currently, over 1,500 people are serving life sentences in Ukraine. There is a firm trend toward an increase in their number every year by 30–50 people. Maintaining such a number of life-sentenced persons is a significant burden for the penitentiary service. The existing situation requires the creation of ever new places for holding life-sentenced prisoners, the training of specialists for their guarding, and the conducting of social-psychological work. Factors that would reduce the number of this category of persons are practically non-existent. The number of life-sentenced prisoners can decrease either through the death of prisoners or through pardons, but these can be isolated cases, which is significantly less than the growth rate. Society has to pay more every year for the maintenance of life-sentenced prisoners.

5. Relatives of life-sentenced prisoners as a social factor.
The burden of a life sentence is borne together with the convicted persons themselves by their relatives—parents, wives, children. And even if they realize the justice of a life sentence for their loved ones and do not deny it, it is still unlikely to reduce their suffering. And there are thousands of such people...