In contrast to the lengthy trial of Graham Dwyer, it is likely that the sentencing hearing scheduled for Monday, April 20th, at which the penalty is imposed for the murder of Elaine O’Hara, will be a relatively brief hearing.
Like all those convicted of murder in Ireland, Dwyer will be subject to a mandatory life sentence. There is no discretion available to the judge in imposing this sentence. In effect, the penalty was determined the moment the verdict was delivered in court.
Mandatory sentences are rare in Ireland. Ordinarily, a sentencing judge will have broad discretion in terms of the selection of sentence. In 2010, the Supreme Court justified the mandatory nature of the life sentence for murder on the basis that murder is “the ultimate crime against society as a whole”.
However, while it may seem relatively straightforward – if you are convicted of murder, you will serve a life sentence – the mandatory nature of the sentence has certain implications.
One implication is that those charged with murder are unlikely to plead guilty at the early stages of the process and will contest their guilt through trial by jury.
In reality, most people charged with a criminal offence plead guilty, meaning that the need for a jury trial is dispensed with. A determination of guilt or innocence is no longer necessary and the person will simply be sentenced for their offence.
In 2012, 91 per cent of convictions on indictment followed a plea of guilty. In only 7 per cent of cases was the issue of guilt or innocence determined by a jury.
While there are many reasons as to why a person might plead guilty early on in the process, the system also incentivises such pleas. A person who pleads guilty can expect a reduction in his or her sentence as a result.
The rationale for taking this into consideration at sentencing can be related to the elimination of the need for a trial and the uncertainty of conviction that might result. It also saves the victim the hardship of giving evidence against the accused.
By contrast, there is no incentive for the person charged with murder to plead guilty. Whether he pleads guilty or not, he will be subject to the same penalty – a life sentence. Of murder cases heard by the Central Criminal Court in 2012, not one individual entered a plea of guilty to murder, meaning that all convictions for murder resulted from jury trial.
In the absence of any incentive to plead guilty, perhaps many who are in fact guilty of the offence are willing to take their chances in front of a jury in the hope of an acquittal or conviction of a lesser offence.
If a discretionary life sentence was to replace the mandatory sentence, a sentencing judge could take into consideration a guilty plea and reduce the sentence accordingly.
This might incentivise greater numbers of individuals who are guilty to plead guilty at the pre-trial phase.
Additionally, this would save victims’ family members and witnesses the strain of enduring the trial process and in high-profile cases – such as Dwyer’s – intrusive media exposure.
A further implication of the imposition of a mandatory life sentence is that a determination must still be made in relation to the length of time such a prisoner should serve in jail. Life does not mean life in prison and European countries allow for life-sentence prisoners to be released after a certain number of years.
In Ireland, this decision is a political one. The Minister for Justice determines at what point a life-sentence prisoner is released – on the advice of the Parole Board.
Recent data reveals that the average time served by life-sentence prisoners released in 2014 was 20 years. However, this is by no means an accurate barometer of what an individual such as Dwyer might expect to serve prior to being released in the future.
While the Parole Board and minister take factors such as the risk of reoffending and the seriousness of the offence into consideration, there is also room for factors that relate more to politics than parole.
In interviews I conducted for my doctoral research with Parole Board members, the difficulties in releasing those who have attracted a level of notoriety was often referenced.
As one Parole Board member observed: “In the past, there were high-profile prisoners where there would have been recommendations for parole which weren’t agreed with [by the minister] and I would believe that is exclusively on a political decision and I think that’s wrong.”
There are many reasons why an individual such as Dwyer might be detained for a lengthy period in prison, such as the need to protect the public from further offending. However, the macabre celebrity status afforded to him in the media and the political implications of this for the minister of the day should not be a factor that impacts on the determination of detention or release.
[ Dr Diarmuid Griffin is a lecturer in law at NUI GalwayOpens in new window ]