Abstract
In Sweden, the harshest punishment that offenders face is a life sentence. Yet, in contrast to the United States, such a sentence does not mean that offenders necessarily spend the rest of their lives in prison. The Swedish government has traditionally been able to grant clemency to lifers, which has led to an average life sentence of about 14 to 16 years. In 2006, this clemency practice was modified with an act establishing a judicial process deciding about the release of lifers. This research finds that the 2006 act fits into the broader and traditional understanding of the Swedish criminal justice system as a rehabilitative institution focused on the individual offender. By evaluating the act on its impact on public safety, political acceptability, and on the lifetime incarcerated themselves, this article reveals how the 2006 act has so far particularly benefitted the lifetime incarcerated.
While the United States are considered to have the most punitive crime policies in the Western world, the Scandinavian countries fall on the opposite side of the spectrum (Hofer, 2003; Tonry, 2001). According to the Swedish Penal Code, the harshest punishment that offenders face is a life sentence (Brottsbalken, 1962). Yet in contrast to the United States, where life sentences often mean “natural” life or might even be imposed without the possibility of parole, a life sentence in Sweden does not aim at keeping offenders behind bars for the rest of their lives.
“Lifers” 1 in Sweden have traditionally had the possibility to apply for clemency from the government after a certain amount of time served behind bars. With Swedish penal policies traditionally having been designed to limit the negative effects of imprisonment, applications of this group of offenders have regularly been treated positively. By granting clemency, an (indefinite) life sentence is transformed into a definite time sentence. This has led to an average life sentence of fourteen and sixteen years behind bars (Statens Offentliga Utredningar [SOU], 2002).
In 2006, release procedures for lifers changed substantially in Sweden. A new law titled “Act on the Commutation of Life Sentences” that established a judicial process deciding about the release of lifers entered into force (Lag om omvandling av fängelse på livstid, 2005). These judicial safeguards complemented the traditional governmentally steered clemency process.
This article analyzes the understanding of punishment in the Swedish criminal justice system by examining the use of life sentences, the harshest punishment available in Sweden. With the 2006 act changing the release procedures for lifers dramatically, this research focuses on the question if this act confirms the shift toward more punitiveness that was first noticed in the late 1980s or if it rather still fits into the broader context of Sweden’s liberal understanding of penal policies. In an effort to answer this central research question, the article is divided into two parts. The first part provides a historical analysis of the social, economic, and political context, in which the Swedish criminal justice system is embedded and out of which the 2006 reform arose. In order to understand the use of life sentences in Sweden, the role of punishment within Swedish society first has to be examined. In this section of the article, I thus rely on previous academic literature on the development of not only the Swedish penal system in a narrow sense but more broadly on the characteristics of the welfare state. In this context, I also track the development of the Swedish Penal Code, as the provisions of this law particularly reflect the country’s specific understanding of punishment. After having described Swedish penal practices over time in general and the use of imprisonment in particular, I attempt to answer the question for which specific reasons the 2006 act was passed at the point in time it was.
The second part of the article consists of an evaluation of the 2006 act. The law will be evaluated on the basis of three criteria: first, the political landscape surrounding the act’s implementation will be examined. Has political support for the reform changed since 2006? Is any opposition to the law recognizable now? The second criterion is the law’s effectiveness in light of public safety. The new procedures should not lead to an unsafe environment due to early, unsupervised releases of violent criminals. This criterion also requires considering the policy’s apparent impact on public opinion. Basically, life sentences now capture major media attention in Sweden, as they are only rarely imposed (there are currently 155 people serving life sentences) 2 and only for criminal acts that have already been covered extensively by the media. The third and final criterion for evaluating the act is its impact on the offenders themselves. With the establishment of additional legal safeguards, I investigate if the lifers themselves have benefitted from the act.
Lifetime incarceration in Sweden is examined through the theoretical framework of the Rational Penal Code as introduced by Glueck (1928). The policy evaluation then relies on both an analysis of news reports of various Swedish news sources and informal e-mail correspondences with various actors and researchers involved in the country’s criminal justice system. Based on the historical and legal analysis and the policy evaluation using the three criteria, I shall argue that the 2006 act on the Commutation of Life Sentences is another expression of Sweden’s lenient understanding of punishment, primarily characterized by rehabilitation. By implementing an “individualized” review of the original sentence involving a variety of different actors, Swedish society makes use of scientific instrumentality for its self-protection with the goal of interfering as little as possible even in the lives of those having committed particularly heinous crimes.
The 2006 act also raises questions as to how such a reform would function in the United States, where the number of lifers has increased substantially since the early 1980s. In fact, Nellis and King (2009, p. 3) found that every 11th inmate in the United States is now in prison for life. For that reason, I will conclude by determining if the Swedish reform could serve as an alternative to current penal practices regarding lifetime incarcerated offenders in the United States.
Literature Review
In scholarly literature of the past few decades, the Swedish prison system has often been praised for its liberal penal practices. Hornum (1988, p. 63) stresses that Sweden’s “enlightened and human correctional policies” have raised attention by criminal justice institutions in other countries, particularly in the United States. Prison in Sweden has generally been seen as a punishment of last resort and primarily been imposed for “crimes against the person” (in particular for murder, manslaughter, rape, aggravated robbery, and aggravated drug and smuggling offenses; Leander, 1995, p. 175). For most other offenses, fines have been imposed. In 2007, more than four times as many offenders who were found guilty of a criminal act received a fine rather than a prison sentence (Lindström & Leijonram, 2007, p. 559). If a prison sentence is imposed in Sweden, it tends to be much shorter than in the U.S. and most other European countries (Cavadino & Dignan, 2006).
Research on the Swedish prison system has not fallen short of putting the understanding and use of punishment into the broader context of the country’s welfare state (Cavadino & Dignan, 2006; Hofer, 2002; Hornum, 1988; Pettit & Kroth, 2011; Svensson, 2004). Sweden has long been considered the most highly developed welfare state (Lindbom, 2001). A welfare state is defined as a “democratically created socioeconomic system,” which is designed for the benefit of its entire society (Sackrey, Schneider, & Knoedler, 2010, p. 217). The role of the government in such a society, where each member belongs to the same family, is to protect each individual in the present and the future (Hornum, 1988). As such, poverty is not seen as one’s own choice but rather as a product of economic factors. For that reason, it is society as a whole that is responsible for tackling poverty (Sackrey et al., 2010).
The Swedish welfare state was gradually built up by a social democratic government that was, with the exception of a few years in the late 1970s and early 1990s, almost exclusively in government power since the end of the Second World War. Lindbom (2001) argues that a welfare state designed by social democratic parties particularly focuses on equality and social solidarity among all citizens. In other words, in contrast to a liberal welfare state, which provides for the poor alone, a social democratic welfare state aims at serving citizens by applying “generous, middle-class standards” for everybody (Lindbom, 2001, p. 174). Although the Swedish welfare state ran into economic trouble in the early 1990s and the new conservative government dismantled parts of Sweden’s social security system, welfarism has remained the defining characteristic of Swedish society and shapes the country’s political and economic system (Lindbom, 2001; Svensson, 2004).
While some scholars have characterized the Swedish prison system by tracing its origin in the basic standards of the welfare state, others have focused more broadly on the roots of Swedish culture. Tonry (2004) points out that crime policies despite similar crime rate patterns have varied substantially in Western European countries since the end of the Second World War. He argues that country-specific crime policies depend primarily on the countries’ prevailing long-term trends in values, attitudes, and the public debate (Tonry, 2004). Similarly, Cavadino and Dignan (2006) find that the roots of Sweden’s penal practices lie in the country’s specific culture, which they describe as secular, classless, egalitarian, and liberal.
Welfarism, social democracy, the specific understanding of the role of the government in society, and the characteristics of Swedish culture are deeply intertwined factors that all can serve as explanations for the liberal understanding of punishment in Sweden. With such an understanding, Swedish society considers a criminal a victim of disadvantageous social conditions rather than an “evil person by nature,” who alone must be held responsible for the crime(s) committed.
While the Swedish prison system in this broader context of the welfare state has been studied widely in recent decades, the use of life sentences specifically has not been researched in the Swedish context yet. In contrast, the impact of life sentences in the United States on both the individual offender and the criminal justice system has received some scholarly attention (Appleton & Grøver, 2007; Cheatwood, 1988; Johnson & McGunigall-Smith, 2008; Van Zyl Smit, 2002; Wright, 1990). Although life sentences have been a key feature of the American criminal justice system since the late 18th century, it was not until the 1970s that life sentences became a commonly used sentencing method (Van Zyl Smit, 2002). They have since been used in three principal ways. First, the range of offenses punishable with life was widely expanded. There is a wide range of offenses, not necessarily only murder and rape, which can now lead to a life sentence in most U.S. states. Second, habitual offender laws with mandatory life sentences for repeat offenders were implemented in many states. Most notoriously reflected in California’s “Three-Strikes-And-You-Are-Out” law, these regulations aim at getting rid of career criminals by incapacitating them for life, even though the felonies for which they were sentenced do not necessarily have to be violent. Third, life-without-parole (LWOP) became a popular sentencing alternative to the death penalty for first-degree murder, which was soon expanded as a sentence for a range of other violent offenses (Schartmueller, 2012). release mechanism for LWOP offenders are rare: in some states they could theoretically be released by commutation or after having served a certain amount of years (Wright, 1990). Do any of these uses of life sentences apply to Sweden as well?
In an effort to connect Sweden’s understanding of making imprisonment as lenient as possible with the country’s use of life sentences, Glueck’s “Principles of a Rational Penal Code” will be introduced in the following section.
Theoretical Framework: Glueck’s Principles of a Rational Penal Code
One strain of criminological theory has long focused on the individual characteristics of offenders for explaining criminal behavior. Among earlier prominent theorists, Glueck noticed in 1928 a newly emerged interest in focusing on individuals in social sciences. Glueck was skeptical of relying on legal experts only when drafting and applying penal codes, as their “minds move logically, but provincially, within the ambit of legal reasoning” (Glueck, 1928, p. 454). By outlaying principles of a “Rational Penal Code,” Glueck therefore called for the development of a “science of human nature” that would serve as a basis for criminal law and procedure. Such a science would incorporate the disciplines of psychiatry, psychology, and social case work into a “trinity master-discipline” (Glueck, 1928, p. 454). 3
Glueck’s Rational Penal Code is divided into several principles. The first principle, deeply grounded in utilitarian ideals, holds that “society should utilize every scientific instrumentality for self-protection against destructive elements in its midst, with as little interference with the free life of its members as is consistent with such social self-protection” (Glueck, 1928, p. 455). According to the second principle, scientific individualization of both “peno-correctional diagnosis” and treatment become a necessary component of the penal system (Glueck, 1928, p. 481). Third, a scientifically qualified treatment board should effect individualization only after the offender was found guilty in a criminal court. Periodical reviews of the progress that the offender has made under treatment should be put in place. Finally, individual rights should be protected by provisions against arbitrariness of the treatment board (Glueck, 1928).
With these principles in mind, Glueck would strongly criticize the focus of the U.S. criminal justice system on a few isolated acts of an individual, such as it is expressed by determinate sentencing, mandatory minimums, the understanding of parole as an “automatic reward” or the mechanically applied time-off for good behavior, rather than on the personality and motivations of criminals and their personal backgrounds (Glueck, 1928). Glueck was also skeptical of individualizing punishment by setting up different crime categories (i.e., first-degree murder vs. manslaughter) and by the practice of indeterminate sentencing schemes at his time of writing, as these methods did not take into account the development of the offender while incarcerated with the help of “treatment.” It should be the offenders that are individualized and not criminal acts (Glueck, 1928, p. 467).
With the focus on individualization, Glueck’s early ideas correspond well with the overall direction of the Swedish penal system. In the following part of the article, I will examine if his principles of a rational penal code provide a theoretical base for explaining the use of life sentences in Sweden and if they can guide the analysis of the 2006 Act on the Commutation of Life Sentences. In order to understand the specific application of life sentences in Sweden, its use over time first has to be put into the context of the historical development of Sweden’s penal policies.
Swedish Prison Policy and Lifetime Incarceration in a Historical Perspective
Such as in most Western European countries and in the United States, the breakthrough of the Swedish prison system happened in the first half of the 19th century (Hofer, 2002). After corporal punishment disappeared in the Nordic country in 1855, the Penal Code of 1864 confirmed imprisonment as the dominant form of punishment (Nilsson, 2003).
Particularly relevant for this research is the New Penal Code (Brottsbalken, 1962) that entered into force in 1965. One goal of this Code was to promote the offenders’ rehabilitation in society (Cavadino & Dignan, 2006). The cornerstones of this understanding of punishment were the differentiation and individualization of sanctioning (Leander, 1995). In this context, incarceration should only play an important “backup role” for the reinforcement of norms, but the society’s primary institutions (in particular the family, church, and school) were considered more important for socializing people and transforming them into law-abiding citizens (Tonry, 2001). In other words, prison should be a punishment of last resort and prison sentences should generally be short and be tailored toward the individual offender.
Sweden’s lenient understanding of imprisonment was further reflected in the Prison Treatment Act (Lag om Kriminalvård i Anstalt, 1974). This act, which resulted from efforts of prisoner and civil liberties groups to make imprisonment more humane, coincided with policy proposals calling for “empty the prisons” (Leander, 1995, p. 169). Since the act’s implementation, imprisonment has not only been required to promote the resocialization of offenders after imprisonment but also to counteract the “detrimental consequences of deprivation of liberty” (Lag om Kriminalvård i Anstalt, §3, 1974). Ideally, preparations for any inmate’s release from prison should already be made upon admission (Leander, 1995).
Reflected in these acts, rehabilitation had been the dominant justification of imprisonment in Sweden until then. Meanwhile in United States, where rehabilitation was only considered an “ideal” until the 1970s, rising crime rates and the war on drugs led to a shift toward more punitiveness. 4 It soon became more important to ensure swift and certain punishment for criminals, no matter what their personal backgrounds were like, rather than to “rehabilitate” them. Those who favored more repressive punishment believed that it was not possible to change the behavior of a criminal, as criminals would be inherently bad and needed to be punished accordingly. Therefore, punishment should be harsh, with the purpose of it being a mix of retribution, deterrence, and incapacitation. Meanwhile, rehabilitation started to play an only marginal role in U.S. prisons.
With rising crime rates in the entire Western world during the 1980s, many Western European countries soon followed the U.S. lead in taking on a harsher stand on punishment. In Sweden, the shift toward increased punitiveness was expressed by the Sentencing Reform Act of 1988, which added a “just desert” principle to the traditional rehabilitative ideal. This meant that the “penal value” of the committed crime (the perceived gravity of the offense) must be the most important factor in determining the appropriate sanction for the offender (Lindström & Leijonram, 2007).
Sweden soon started to see an increase in its prison population. While the country’s average prison population was 4,051 in 1976, it increased to roughly 5,000 in the early 1990s and reached 6,902 in 2010 (Hofer, Lappi-Seppälä, & Westfelt, 2012). While some scholars have argued that the higher incarceration rates were primarily caused by real increases in crime, others felt that the higher rates resulted from intensified police efforts against drug sales and drunken driving (Leander, 1995). In fact, when examining the move of crime rates, it can be observed that Sweden has followed the trend of other Western countries in the past few decades (Hofer, 2003). While crime rates steadily increased from the early 1970s until the early 1990s, they then stagnated in the 1990s and increased again only slightly between 2000 and 2010 (Hofer et al., 2012, pp. 54-55). Furthermore, Hofer (2002) noted that the prison population increased primarily due to a lengthening of prison sentences for more serious crimes.
Apart from the expansion of the Swedish prison population in numbers and the lengthening of sentences, another important development since the 1980s is the change in the nature of and the increase in the number of foreign citizens sentenced to prison terms in Sweden. In the 1970s, most foreign citizens in Swedish prisons were of Finnish origin. At that time, many Finns had moved to Sweden for work purposes, which made them soon become the biggest group of foreign citizens. In the 1990s, the traditionally homogenous Swedish society became much more diverse, with more people from outside of Europe immigrating to the Nordic country. Against the backdrop of these societal changes more foreign than Swedish citizens were sentenced to prison terms in 1995. In 2011, 27% of the Swedish prisoners were foreign citizens (Swedish Prison and Probation Service, 2012). However, this lower percentage in 2011 than in 1995 has to be treated with caution, as many of the immigrants moving to Sweden in the 1990s have since acquired Swedish citizenship.
Despite these changes, the Swedish criminal justice system has continued embracing rehabilitation rather than incapacitation, the main mode of punishment in a punitive context. Overall, prison sentences have remained short, with the shortest definite time sentence being fourteen days and the longest ten years (Brottsbalken, chap. 26, 1962). Sweden thus still tries to keep the deprivation of an individual’s liberty at a minimum. In addition, crime is conceived as a “product of personal disadvantage or disability and social disorganization” (Tonry, 2004, p. 13). Punishment should thus not be harsh and rather be based on the minimization of harm caused by the loss of individual freedom. By aiming at reshaping the lives of individual offenders while changing the social and economic conditions from which their criminal behavior originated (Cole, Gertz, & Bunger, 2004), proponents of the rehabilitative approach believe that renunciation of criminal behavior actually is possible.
With imprisonment being understood as a form of punishment of last resort, it appears to be particularly challenging to punish the most heinous criminals. In Sweden, life sentences are used for that purpose. The following two chapters will examine the Swedish life sentence in more detail and see how it fits into the broader context of the country’s liberal penal policies and examine also if the shift toward increased punitiveness in the late 1980s has affected lifers in some way.
The Life Sentence in a Historical Perspective in Sweden
Since the abolishment of the death penalty in 1921, the harshest punishment that has been available for criminal offenders in the Swedish law has been a life sentence. The life sentence was introduced into the Swedish law in 1734 but was, in contrast to the death penalty, only rarely imposed at that time (SOU, 2002). According to the Swedish Penal Code, a number of different crimes can lead to a life sentence: a life sentence has so far almost exclusively been imposed for murder, but an offender could theoretically also be sentenced to life in prison for serious espionage, aggravated arson, kidnapping, gross sabotage, maritime, aviation and airport sabotage or serious devastation endangering the public (Brottsbalken, 1962). However, the Penal Code also holds that offenders under the age of 21 must not be sentenced to life regardless of the type of crimes they have committed (SOU, 2002).
The life sentence in Sweden is unique in the sense that it is the only sentence that leaves offenders unknown about the time they have to serve in prison. Nonetheless, a life sentence in Sweden does not mean that offenders will necessarily spend the rest of their lives in prison. Traditionally, lifers have had the possibility to apply for clemency from the government and it has been common for the government to grant clemency after an average of about fourteen to sixteen years served.
Higher incarceration rates in Sweden starting in the 1980s are also reflected in the higher number of offenders sentenced to life. While in 1990, there were only 35 inmates serving life sentences in Sweden, this number stood at 155 in October 2012 (see Figure 1). Out of these 155 lifers, five were women.
Absolute number of lifetime incarcerated offenders in Sweden.
The sharp increase in the number of lifers might seem surprising, as Sweden has had a relatively low and stable homicide rate during the past few decades (Lindström & Leijonram, 2007; Hofer et al., 2012). In response to that development, the Swedish Prison and Probation Service points out that lifers on average now also spend more time behind bars than previously (Swedish Prison and Probation Service, 2012). Accordingly, that time was estimated at an average time of sixteen years and four months in 2010 (E. Ekstrand, personal communication, August 9, 2010).
The sharp increase in life sentences in the past two decades is also reflected in the percentage of lifers in the total Swedish prison population (see Figure 2). While in 1993 lifers still constituted less than 1% of the total prison population, their share rose to 3.1% in 2011 (Swedish Prison and Probation Service, 2011).
Percentage of lifetime incarcerated in the total Swedish prison population.
Such as in the total Swedish prison population, foreign citizens constitute a large share of lifetime incarcerated offenders. The Swedish Ministry of Justice pointed out that between 1988 and 1998, an average of one third of newly admitted lifers were foreign nationals (Lindström & Leijonram, 2007). More recent statistics of the Swedish Prison and Probation Service confirm this trend. Between 1998 and 2010, an average of 30% of newly admitted lifers were foreign citizens. Most striking was the year 2010, when only four new lifers were admitted to Swedish prisons, out of which three were foreign citizens (see Figure 3).
Newly admitted lifers—Swedish and foreign citizens, 1998 to 2010.
With the prohibition of sentencing an offender under the age of 21 to life, the average age of intake for lifers in Sweden has been higher than in many other European countries and in the United States. In fact, the largest group of lifers has been between 25 and 29 years of age at intake between 2000 and 2010 (see Figure 4). In October 2012, the youngest lifer in Sweden was 25 years of age and the oldest 84 (Swedish Prison and Probation Service, 2012).
Age at the year of intake of Swedish lifers, 2000 to 2010.
The Swedish Prison and Probation Service is responsible for preparing inmates for release, regardless of the length of their sentence. The rules for imprisonment currently in use for prisoners in general and lifetime incarcerated in particular are laid out in the Swedish Code of Statutes “Act on Imprisonment” (Fängelselagen, 2010). By referring to inmates in general, the act indirectly holds that the agency must not distinguish between lifers and other inmates when providing work, training, and treatment programs. In fact, every inmate, regardless of the length of the individual sentence, is obliged to take part in some form of occupation, be it in the form of work, training, or programs “related to crime or misuse or some other structured occupational activity” (Fängelselagen, ch. 2, § 2, 2010).
In an effort to facilitate the inmate’s readjustment in the community, the Act of Imprisonment also lays out several types of leaves and other temporary stays away from prison (Fängelselagen, ch. 10, 2010). Such as every other inmate, lifers are eligible for leaves that are either supervised or unsupervised, depending on the individual’s release plan and progress made while incarcerated. Lifers become eligible for such leaves after they have served one quarter of their sentence, which is determined by using a fixed sentence of 18 years for lifers. (This means that lifers first may request leaves after having served four and a half years.) The leaves can then range from a few hours to a maximum of three full days (E. Ekstrand, personal communication, April 2, 2012).
In sum, the understanding of imprisonment in the broader framework of rehabilitation is also expressed in the way Sweden has dealt with lifetime incarcerated offenders. Lifers should not spend the rest of their lives in prison but rather be given a second chance in society. Consequently, they all receive individualized release plans at the time they are initially sentenced to life, they are required to work, and they are granted leaves (both supervised and unsupervised). How it is determined though when the lifer is ready for release from prison will be discussed in the following chapter.
The 2006 Act on the Commutation of Life Sentences
In 2006, Sweden enforced crucial legal changes regarding the release procedures of lifetime incarcerated offenders. The traditional clemency tradition of the government was supplemented by a new law “Act on the Commutation of Life Sentences” (Lag om omvandling av fängelse på livstid, 2005). The act emerged out of an inquiry of the Ministry of Justice in 2000, which resulted in the establishment of a working group in order to examine the options for release of lifetime incarcerated offenders. 5 The working group then published a “Report of the Inquiry regarding the examination of release options for life-time incarcerated” (Betänkande från Utredningen om frigivningsprövning av livstidsdömda) in 2002 (SOU, 2002).
The working group found that the practice of release through clemency granted by the government brought along some major disadvantages. Although the governmental clemency process was considered relatively simple and informal, the working group believed that it was difficult for both the offender and the Swedish Prison and Probation Service to know exactly what was required when applying for clemency. Furthermore, the working group located a risk of political interests intermingling with the clemency process (SOU, 2002).
In light of this opinion, the working group argued that if another institution rather than the government alone could decide about the release of lifetime incarcerated, this would not only enhance the predictability for offenders and the Prison and Probation Service of the specific date of release, but it would also provide the offender with enhanced legal safeguards (SOU, 2002). As a result, the working group recommended that the Court of the City of Stockholm should be mandated with deciding about a lifer’s release, while maintaining the government’s traditional clemency granting process.
The working group’s final report was used as the base for the new act, which entered into force on November 1, 2006. Despite the working group’s recommendations, the law mandated the District Court of the city of Örebro and not Stockholm with examining applications of lifetime incarcerated offenders. 6 The act established guidelines for lifers to apply to get their indefinite life sentence changed into a definite time sentence, after having served at least ten years in prison. If their application is rejected, the lifers are allowed to reapply after another year has passed or appeal to the Court of Appeal (Göta hovrätt). They might also still apply directly to the government and ask for clemency (Lag om Omvandling av Fängelse på Livstid, 2005).
The working group’s report also set out the various criteria, which the District Court is obliged to consider when examining the lifer’s individual application (see Table 1). These criteria are the inmate’s overall behavior and development while incarcerated, his/her participation in rehabilitation efforts, the risk of falling into relapse of crime, the nature of the individual crime, and the time already served behind bars. Finally, the Court has to make a holistic evaluation, in which it must take into consideration the individual characteristics of the application (SOU, 2002). On average, the judicial process takes about five to six months before a decision is reached (P. Grevesmühl, personal communication, April 10, 2012).
Criteria for the Evaluation of Lifer Applications at Örebro’s District Court.
Sources: SOU 2002:26, Swedish Prison and Probation Service, 2012.
By trying to gain as much of a complete understanding of each lifer’s “complex mental and social factors,” the Court makes use of psychiatrists, psychologists, and social investigators employed at the National Board of Forensic Medicine (Rättsmedicinalverket) and the National Board of Health and Welfare (Socialstyrelsen; see Table 1) and thus relies on what Glueck describes as the “science of human nature” (Glueck, 1928, p. 462). In addition, legal experts and prison officials add to shaping this “full” picture of the individual offender. The judicial process thus demonstrates that not only legal experts but a variety of actors from different fields systematically assist the Court in determining when the lifer should be released from prison.
If the Court decides to change the life sentence into a definite time sentence, the new sentence must not be shorter than the longest definite time sentence that is foreseen by the Swedish law. The longest such sentence is currently eighteen years (Swedish Prison and Probation Service, 2010).
In sum, the 2006 act is a clear illustration for the tendency of individualization of punishment in Sweden. It implies that punishment should not be derived from the type of offense committed but rather from the individual circumstances that led to the offense. Such as foreseen by Glueck’s rational penal code, a “science of human nature” serves as the basis for the evaluation of the lifers’ applications. The Court has to take into consideration factors derived from psychiatry, psychology, and social case work. As such, the Court may utilize a number of scientific instruments available to it to determine if the lifer is eligible for getting the indefinite time sentence transformed into a definite time sentence.
After having outlined the specific legal changes as implemented by the 2006 reform, the question that remains now is to examine what the reform’s impact has been so far. In the final chapter of this article, the reform will be evaluated based on three criteria: its political acceptability, its effectiveness regarding public safety, and the impact it has so far had on the lifetime incarcerated offenders themselves. As between 2009 and 2011 the Swedish media reported in detail about the applications of Mattias Flink, Annika Östberg, Leif Axmyr, Jackie Arklöv, John Ausonius, Tommy Zethraeus, Tony Olsson (now Byström), and Helmer Ljus, also using their full names in their news reports, the applications of these “high profile” cases will be analyzed in more detail. The goal of this news report analysis is to investigate which criteria as laid out by the 2006 reform were responsible for either granting or rejecting the applications.
Evaluation of the 2006 Act Based on Three Evaluative Criteria
Political Acceptability
In Sweden, there was long no open discussion on crime and punishment (Svensson, 2004). It was mainly due to the political left that has been in power for the most part of the 20th century, that not much attention to law and crime issues had been paid to. However, a change was recognized in the early 1990s (Hofer, 2003). Back then, a movement toward more “law and order” appeared, even though this movement was rather small in Sweden compared to other countries. It was the conservative government that got into power in 1991, that during the election campaign pushed the issue of “law and order” more into the public’s eye. In particular, the strongest conservative party, the Swedish Moderate Party, launched campaigns against criminals with such slogans as “Keep them locked up, so we can go out!” (Leander, 1995, p. 169).
While crime became a hotter political topic in Sweden in the 1990s, the conditions within the country’s prisons in general and for lifetime incarcerated specifically were not widely discussed by politicians. As such, the preparation and implementation of the 2006 act did not lead to any major political debates (O. Nyman, personal communication, October 27, 2010). By and large, the Swedish government has a lot of discretion in shaping prison policy. While the Ministry of Justice is responsible for establishing prison policy, the Swedish Prison and Probation Service manages the daily work of the prisons, both centrally and regionally. This agency is headed by a government-appointed Director General (Lindström & Leijonram, 2007).
So far, the 2006 act has been perceived well by most political actors in Sweden. A small debate emerged about abolishing the life sentence completely, such as neighboring Norway did in 1981, 7 but it has not been very vivid. There are three out of eight parties in the Swedish parliament, the Christian Democratic, the Green, and the Left Party that are in favor of abolishing the life sentence, but these parties are rather small and do not have major governmental influence right now (O. Nyman, personal communication, October 27, 2010). 8
While most political parties have perceived well of the 2006 reform, some specific applications still led to some political debate. One of them was Jackie Arklöv’s 2010 application (O. Nyman, personal communication, October 27, 2010). Arklöv was sentenced to life in prison for killing two policemen in 1999. The main reason for Arklöv sparking a debate was that he had barely served ten years in prison for his crimes, but the current regulations allow him to apply after having served ten years behind bars only. Staffan Danielsson, a parliamentary representative of the Center Party, posed a formally written question to the Minister of Justice, Beatrice Ask from the Swedish Moderate Party, on October 13, 2010, asking her if she intended to look over the legal procedures about the change of a life sentence. Ask responded to Danielsson on 20 October (Svar på skriftlig fråga, 2010/11:8), arguing that the 2006 act had so far worked well, with the Court examining every case individually following a set of criteria. Ask also stressed that a lifer may not be released before having served a minimum of 18 years, the longest definite time sentence currently in use in Sweden. In short, Ask did not see any reason for changing the law.
In the Rational Penal Code, Glueck mentions that
“a person who has profited by institutional or extra-mural treatment and gives reasonable scientific promise of permanent rehabilitation, will be given his liberty after a comparatively short period” (Glueck, 1928, p. 460).
In fact while being in prison, Arklöv seemed to have been doing really well. He obtained two master’s degrees, one in history and the other in sociology, and started working on his doctorate. He has further put effort into getting rid of his Nazi ideology by working with the project “Exit” of the nonprofit organization Fryshuset, which aims at supporting those who wish to leave nationalistic, racist, or nazi-oriented groups and movements (Fryshuset/Exit, 2012). Finally, his risk of relapse was deemed low, although he only had eight supervised leaves and no unsupervised ones at the time of his second application (Tures, 2010a).
Despite these efforts, Arklöv’s application was rejected by the District Court in December 2010 with the argument that both of the murders committed require a punishment of at least 24 years in prison. The nature of Arklöv’s crime was therefore the determinant factor in rejecting his application. In summer 2012, Arklöv handed in his third application to the Court. 9 As Glueck’s second principle states, periodical reviews of the progress that the offender has made under treatment should be put in place. As such, lifers have had the possibility to reapply to get their sentence changed once every year.
In contrast to Arklöv, the reasons for rejecting the application of his codefendant Tony Olsson (now Byström) in January 2011 were of a different nature. Such as Arklöv, Olsson pursued PhD studies in history while in prison and distanced himself from Nazi ideology. However, Olsson managed to escape from the Hall prison in 2004 and had on several occasions acted violently against prison guards. The Prison and Probation Service thus highlighted in its statement to the District Court that Olsson’s behavior while incarcerated had been seriously flawed in a “massive and unique way” (Göteborgs Posten, 2011). Consequently, the District Court rejected Olsson’s application.
More recently, some critical voices regarding the practice of the commutation of life sentences have emerged in the Swedish parliament. The right-wing Sweden Democrat Party (SD) submitted a proposal in October 2012 with the effort to consider the introduction of a life sentence without the possibility of clemency or the changing of life into a definite time sentence (Motion, 2012/13:Ju258). The party argued that some cases have shown that a definite time sentence is not proportionate to the initial crime and that rehabilitative efforts should not be applied for this type of criminals. This proposal is currently under review, but with SD being an opposition party and the other parties in parliament still in favor of the 2006 reform, changes of the Swedish Penal Code in this respect are currently unlikely. Still, the proposal indicates that life sentences in general and the 2006 reform in particular have recently received more political attention.
The Law’s Effectiveness: The Impact on Public Safety
In a utilitarian fashion, Glueck stressed that the social purpose of the “machinery of justice” should be to interfere with the individual’s rights as little as it is necessary to maintain general security (Glueck, 1928, p. 457). Sweden has incorporated this utilitarian principle in its Penal Code by keeping prison sentences a punishment of last resort. For those offenders committing crimes that can lead to a life sentence, the 2006 act has raised concerns about that the punishment could become disproportionate to the crime by giving these offenders the chance of getting released early. The SD party stressed in its October 2012 proposal to parliament in an incapacitative manner that a person sentenced to life should never be given the chance again to hurt others and that society needed to be protected from such criminals for their “lifetime” (Motion, 2012/13:Ju258).
Statistical data provided by the Swedish Prison and Probation Service (October 15, 2012) revealed that 122 lifers applied to get their sentence changed into a definite time sentences in the 5-year time-period from September 24, 2007 to September 24, 2012 (see Table 2). From these 128 applications, 32 were granted. These inmates have been released or are now serving a definite time sentence instead of a life sentence. What is different though for the latter to the situation prior to the application process is that they now know about their exact release date, which they did not before their application. There have also been a total of 27 applications that were not reviewed by the Court in the first place, either because the lifer applied before he/she had served the minimum of ten years required before applying or because he/she reapplied after having been rejected previously and the 1-year time-period in between applications was not kept (P. Grevesmühl, personal communication, April 10, 2012).
Number of Lifer Applications to Örebro’s District Court.
The statistical data show that the lifer applications are examined on many different grounds and that the majority of them actually get rejected. Some of the lifers have applied several times already but got rejected each time. Apart from Arklöv, John Ausonius has already applied three times. The so-called Laser Man 10 shot one person and gun-wounded ten others, all men with an immigration background, in the early 1990s in Stockholm and Uppsala. Providing support for Ausonius’ second application in 2010, the then Director of the Prison and Probation Service Lars Nylén stressed that Ausonius had shown exemplary behavior while incarcerated. He started a college degree, was responsible for cleaning school premises, and started a payment plan to pay off his expenses. In addition, he was attending a program on relapse and had cooperated with other inmates and staff on every occasion (Göteborg Posten, May 25, 2010). However, the National Board of Forensic Medicine deemed the risk of relapse as medium-high in its report to the Court (Göteborg Posten, December 10, 2010). A high risk of relapse and the fact that Ausonius “sees himself as a person that is performing above average and has a condescending undertone to people who do not” were also the negative factors that the National Board of Forensic Medicine highlighted in its report regarding Ausonius’ third application in 2012 (SVT Nyheter, 2012). On these grounds, this application was also turned down.
An important factor to determine the impact of the reform on public safety would be recidivism rates, but due to the overall small number of lifers and the short time-period passed since the enactment of the reform, such data are not available. However, the case of Helmer Ljus, with 84 years of age currently the oldest lifer in Sweden, shows that doubts about the likelihood of relapse can be the determinant factor in rejecting applications. Ljus had already served an 11-year sentence for murder committed in 1988. After release, he killed his neighbor and was sentenced to life in prison in 1999. Despite his age and poor health, the Court rejected Ljus’ application in 2009 on grounds of high risk of relapse (Tagesson, 2009). A similar case is the one of Leif Axmyr, the inmate that has spent the longest time behind bars in Sweden. He was sentenced to life in 1982. After his first application was rejected due to bad behavior while incarcerated and a high risk of relapse, the District Court granted his second application in 2010. However, the Court of Appeal (Göta hovrätt) overruled this decision due to a continuing high risk of relapse and the fact that Axmyr had not been granted any unsupervised leaves yet (Göteborg Posten, December 21, 2010).
Apart from the review of statistical data, the impact of the reform on public safety can also indirectly be determined by public opinion. Although lifetime incarceration has long been absent from public debates and media coverage, it has become a hotter and more frequently addressed topic by the media in recent years. Since the 2006 act, all the major nationwide Swedish newspapers, Aftonbladet, Dagens Nyheter, and Svenska Dagbladet have reported extensively about the possibilities lifers have to apply for getting their life sentence changed into a definite time sentence: these newspapers have reported about the various aspects of the judicial application process, from the first appearance of the lifer in court, the various statements and evaluations made by the main actors to the final decision announced by the Court. The interest of newspapers in that topic was especially visible, when the main Swedish tabloid, Aftonbladet, ran a big story with pictures of 15 lifers on October 25, 2010. The article was titled “The Lifers in Sweden—They Are Too Dangerous to be Released,” referring to those whose applications had so far been rejected.
Moreover, the main Swedish television news channels, the public station SVT and the private station TV4, regularly show interviews and news clips about the lifers’ application processes to the District Court. The case of Annika Östberg is one example. Östberg was sentenced to life in prison in California for a double murder in 1981 and was eventually transferred to Sweden in 2009, where she got her life sentence changed into a definite time sentence. In that year, she was invited to the popular program “Summer Talk” on the Swedish public radio. After that talk, a television show followed, in which Östberg was interviewed while being on a cruise ship in the Stockholm area. Previously, Östberg’s life was documented in a film “Ett brott, ett straff, ett liv” (A crime, a punishment, a life) that was broadcasted on Swedish television SVT2 in 1999 and made her life story widely known in Sweden.
As another example, the well-known Swedish talk show “Debatt” ran a half-an-hour program on Jackie Arklöv’s application on October 21, 2010. Not only was his attorney interviewed and questioned about his client’s personal character and their working relationship, but one of Arklöv’s victims’ family members sat in the audience during the show and was also asked about her opinion about a possible change of the sentence. In other words, many of these lifers have almost been treated as “celebrities” by the Swedish media, causing them to become a common household name.
Meanwhile, the general public has become well informed about the legal safeguards that are currently available for lifers. The general public is now basically aware that a life sentence does not mean staying in prison for the rest of an inmate’s life. However, it is unlikely that the overall level of a feeling of public safety in Sweden has been effected by the reform. Since 2006, annual crime surveys have been conducted by the Swedish National Council for Crime Prevention (BRÅ) in an effort to measure fear of crime and the general level of public confidence in the country’s criminal justice agencies. In the Swedish Crime Survey of 2010, the general public reported a “very or fairly high confidence” in the Prison and Probation Service of 42% and in the Courts of 53%. This is a substantial increase to 2006 data, when the very or fairly high confidence in these two institutions was only measured at approximately 30% and 40%, respectively (Swedish National Council for Crime Prevention, 2011). Although the impact of the 2006 reform has not been measured separately by these surveys, the increase in the levels of confidence in both the Prison and Probation Service and the Courts suggests that the public is not any more concerned about its safety than it was prior to the reform.
Impact of Legal Reform on Lifers
The above-described cases of Arklöv, Olsson, Ausonius, and Östberg show that the 2006 act gave lifers a new tool for getting their indefinite life sentence transformed into a definite time sentence. Lifers appear to be benefitting from this reform for several reasons. First, the reform provided them with legal safeguards that were absent in the traditional governmental clemency process. As Glueck’s fourth principle holds, individual rights become protected by provisions against arbitrariness of the “treatment board” 11 (Glueck, 1928, pp. 481-482). With the Swedish working group of the Ministry of Justice raising the concern in 2002 that the government might have political interests when deciding about a release, the more complex procedure of the Court added the guarantee for the lifer that a variety of clearly defined legal criteria would be taken into account when examining an individual application.
Second, lifers themselves have been given the opportunity to appear in court. They may make a statement about why their life sentence should be changed into a definite time sentence. As one example, Mattias Flink, who was sentenced to life in 1994 for shooting seven people, applied for the second time to get his life sentence changed in 2010. At the court hearing, Flink was questioned by his attorney and the prosecutor about his past (the 1994 crimes), his feelings of remorse, his life in prison, his personal relationships and his plans if he was released (Dagens Nyheter, June 30, 2010). The Court eventually decided to set Flink’s life sentence to a term of 32 years in prison, which would mean that he would get released in 2015. (Flink would then have served about 20 years, which would equal about two thirds of his initial sentence.)
Another example is Tommy Zethraeus who was sentenced to life in prison in 1995 on charges of murder, attempted murder, and armed robbery. In fall 2010, Zethraeus applied for the second time to get his life sentence changed into a definite time sentence. When Zethraeus appeared in court in October 2010, his attorney mentioned, among other factors, the university degree in psychology that his client obtained while being incarcerated. In reference to that, a member of the Court asked Zethraeus if “he was still a psychopath” to which Zethraeus responded:
“I am quite narcissistic and lack some control over my emotions. But I deal with that by focusing on the person I talk to and let this person speak as well. Plus, I have not been charged with any physical assault in six years. Yet, I still tend to throw out stupid comments, but this is something I still want to work on” (Tures, 2010b).
Despite his personal development and the good behavior in prison, Zethraeus’ second application was rejected on October 25, 2010. The reasons as laid out by the Court were the nature of his initial crime and the difficulty to assess Zethraeus’ risk of relapse (Dagens Nyheter, October 25, 2010). This decision, such as the outcome of the earlier mentioned Arklöv application, illustrates for now what Glueck wrote on the Rational Penal Code:
on the basis of the seriousness of the contemplated offense…it is conceivable that a socially-dangerous personality may remain incarcerated for life (Glueck, 1928, p. 460).
Overall, the reasons for rejecting the applications due to findings made during the judicial process have varied substantially so far. While the applications of Arklöv and Zethraeus were rejected due to the nature of their initial crimes and due to the court finding that they had not served enough time yet for these crimes, other applicants were sent back to serving life in prison for different reasons. In particular, the risk of relapse as determined by the National Board of Forensic Medicine has so far been an important factor for rejecting applications. The applications of John Ausonius (three applications so far), Tony Olsson, Leif Axmyr, and Helmer Ljus have all been turned down due to the National Board of Forensic Medicine identifying an either medium-high or high risk of relapse.
Conclusion
The Swedish criminal justice system has been characterized by an emphasis on rehabilitation. In contrast to the United States, where prison sentences rather serve the purpose of a mix of retribution, deterrence, and incapacitation, prison terms in Sweden are treated as a punishment of last resort and aim primarily at preparing the offender for a successful reentry into society. This lenient understanding of punishment has to be seen in the broader context of the Swedish welfare state, its social democratic ideals, and its specific egalitarian-oriented culture. Although the Swedish welfare state eroded somewhat in the late 1980s and although the country’s criminal justice system shifted toward slightly more punitiveness, reflected by higher incarceration rates and longer prison terms, it by and large maintained the rehabilitative ideal. As this analysis has shown, this view also applies to the country’s most heinous criminal offenders, those sentenced to life in prison.
The 2006 “Act on the Commutation of Life Sentences” is a strong indicator for the Swedish criminal justice system valuing each individual offender. When lifers apply to get their indefinite time sentence, the life sentence, changed into a definite time sentence, their individual characteristics are considered alongside the initial nature of their crime(s). This lenient understanding of punishment was theoretically laid out by Glueck in 1928 with his “Principles of a Rational Penal Code.” This research highlighted how the judicial application process, which complements the traditional government clemency process, can be conceived as an “individualized” review of the original sentence by taking into consideration the offender’s development while being incarcerated. Furthermore, Glueck held that society should use every scientific instrumentality that is available for its self-protection. This means that the judicial process makes use not only of legal experts in determining a release date for lifers but of many other professions, in particular from the Prison and Probation Service, the National Board of Forensic Medicine, and the National Board of Health and Welfare. The goal is to achieve a more comprehensive overview of the character of the individual lifer.
The 2006 act thus confirms both the ideal of rehabilitation through individualization and the cooperation of a variety of actors in different agencies, two factors that have long characterized the Swedish criminal justice system. As such, the reform has not led to any fundamental changes of the basic understanding of the purpose of punishment in Sweden. Despite these broad findings, this analysis also faces several limitations. The evaluation of the 2006 act based on three criteria (the impact on public safety, political acceptability, and the impact on the lifers themselves) has revealed these limitations. First, the time-period since 2006 is still too short in order to draw any strong conclusions about the impact the act has had on the lifers and the Swedish criminal justice system in general. Longer-term statistical data are necessary to show what the reform really has done so far in this respect. Second, there are no data available to show if released lifers have reoffended after their release from prison. Also, the number of those released following the reform is still small. A more substantive qualitative analysis could be conducted that would compare the lifers released through the government’s clemency process and those released through the judicial mechanism to show if any differences in reoffending exist. Finally, although the legal changes of 2006 so far seem to have worked well, it remains questionable if similar judicial release mechanisms could be applied in other countries. Sweden has a very low number of lifers, which makes such individualized reviews possible without adding too many costs. For the United States and its huge lifer population, cost/benefit analyses would have to be conducted in order to show if such individualized reviews would have any cost-saving benefits for prisons by only keeping those lifers behind bars that are likely to pose any safety risks. However, the reform could be applied to some parts of the country’s lifer population. The 2012 Supreme Court ruling Miller v. Alabama (2012) bans mandatory life sentences without parole for juveniles (LWOP) who have committed capital crimes. Following the ruling, many states started reviewing their statutes in this respect. California went ahead and signed the “Fair Sentencing for Youth Act” on September 30, 2012. This act holds that juveniles sentenced to LWOP will be able to submit a petition to the sentencing court to get resentenced after they have served a minimum of fifteen years if they have shown remorse and efforts toward rehabilitation. If their petition is accepted, they could then be resentenced to a definite time of 25 years with an eligibility to parole. There is currently about 300 juveniles in California that are affected by this law (Correctional News, 2012). Although the criteria required for resentencing are similar to the Swedish act, the California act does not specify any actors outside of the court that are required to participate in making the decision (Fair Sentencing for Youth Act, 2012).
In sum, the Swedish act could be an appropriate model for other U.S. states that consider changing their statutes regarding juveniles sentenced to LWOP in response to Miller v. Alabama (2012). Both the several different evaluation criteria as specified by the law and the variety of actors with different professional backgrounds involved in the decision-making process would help to make a holistic evaluation of the individual characteristics of the lifer.
Footnotes
Declaration of Conflicting Interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.