Volume 2, May 2002
Immortality and Sentencing Law
Richard Haigh* and Mirko Bagaric**
Lecturer, School of Law, Deakin University; Senior Advisor, National Judicial
Institute and Adjunct Professor, Osgoode Hall Law School.
** Associate Professor, School of Law, Deakin University.
Abstract: The time may not be far away where we may
be able to live much longer than we do now – potentially forever. This will
have an enormous impact on the way people live their lives as the underlying
premise that life is finite underpins many of the central decisions and life
choices we make. This paper outlines some philosophical and legal doctrines
that are based on the premise that life is finite and some of the changes that
may need to occur in light of medical advances in ageing. In particular, it
focuses on the changes to sentencing law that may be necessary to accommodate increased
human longevity. For the skeptics who refuse to accept the concept of
immortality, the arguments presented do not depend on living forever. Some of
the issues discussed here are also relevant, albeit in an attenuated manner,
because of increases in human longevity that have occurred in the last 100
born 30 years hence may grow up with such perfect cellular maintenance that
they will never age, dying only by accident or choice. Will we get the benefits
of these discoveries? Maybe not – we might be, sadly, the last mortal
generation. But who knows – if we can keep ourselves alive and healthy, maybe
some of these treatments will be retrofitted into our ailing bodies and make us
new again.... If you are lucky you may see 3000, or even live indefinitely. We
need to discuss, well ahead of time, whether that would be desirable. Me, I’m
voting for life over death.
The purpose of this paper is to raise
awareness of how the prospect of immortality and increasing human longevity may
affect established legal doctrine. Increasing life span has important
implications for most areas of the law and many legal principles will need to
be modified to accommodate this. This paper discusses one area of law which we
believe is sensitive to increasing human longevity – criminal sentencing.
Before doing that, we set the background by discussing scientific developments
in ageing research. This is followed by a brief discussion of the moral
implications of immortality. In the last section of the paper, we examine the
potential ramifications of increased longevity on sentencing law.
The assumption that people will
normally die within about five to eight decades from birth underlie many
fundamental legal principles and maxims. However, these assumption should no
longer be taken for granted. Scientists are currently suggesting that, in the
near future, like all biological processes, ageing can be stopped or at least
significantly delayed. It may soon be the case that the only people who die are
those who elect to or are involved in serious accidents. Even if immortality is
unattainable in the short term, it is certain that as a result of advances in
medical treatment the average human life span will continue to increase.
Already, life expectancy in Western nations has almost doubled in the past
century and indications show that human life span will continue to increase.
If the duration of human life will
change, continued application of some current legal principles will have
serious negative implications on the legal and social systems. For example, a
fifteen-year jail term for murder may seem appropriate on the basis of present
day life span estimates; however, it may seem entirely inadequate when the
offender is likely to live for another 180 or 200 years. Even more questionable
is a fifteen-year jail term for murder where the victim could have lived forever.
Although medical and scientific
advances may be leading to immortality, it is not going to happen overnight.
Nevertheless, this is an issue that we believe justifies immediate attention.
We second the opinion that, ‘[i]t is no more dangerous to exercise a little
imagination about our future than it is dangerous to fail to be prescient about
possible surprises’. To help
avoid serious social, political and legal problems, the response to legal
issues related to increasing longevity and/or immortality should be proactive.
The experience regarding superannuation
provides a good example of the significant difficulties that can occur when
policymaking on ageing is developed in haste without adequate forethought. Due
to the absence of foresight regarding funding problems that would occur as a
result of increased longevity, superannuation law has developed in a reactionary
fashion. This trial and error process has resulted in literally thousands of
legislative and policy changes to the superannuation area over the past decade,
leaving most of the community and the superannuation industry itself in a state
of confusion regarding their respective duties and entitlements. This miasma
exists now and will continue to do so well into the foreseeable future.
Advances in Ageing
Many may consider the concept of
immortality a fantasy, so wild that it stretches the imagination beyond its
limits. From the time we learn to speak one of the most fundamental and
unwavering truths instilled in us is that we will die one day. While immortality
appears to be an unrealistic claim, it may be no more incredible than the
notion of air travel was to people many years ago.
Advances in microbiology and genetics have given new
glimpses into the potential life span of a number of organisms. The science is
complicated and for our purposes there is no need to do more than lay a basic
foundation for the view that immortality is possibly achievable.
Cells in our bodies can be classified by longevity into two types, mortal
(regular skin, muscle and nerve cells) and more or less immortal (cancer, sperm
One of the main differences between the two is that the repeating dioxyribonucleic
acid (DNA) strings that cap off chromosomes or telomeres do not shorten during
cell division of immortal cells. Less than fifteen years ago the enzyme
telomerase was discovered in a single-celled protozoan.
It was found that this enzyme acts in immortal cells to repair the telomeres.
In 1998, it was shown that activating telomerase in mortal cells gives them a
longer life by knitting new DNA onto the ends of chromosomes.
In simplified terms, telomerase seems to slow down, or sometimes turn off, the
genetic clock that ticks away in each mortal cell.
At the same time, biogerontologists
have been able to show that genetic factors play a large role in the ageing
rates of whole organisms. By selectively breeding longer-living fruit flies,
researchers were able to dramatically increase their life span
and in longer living earthworms, a longevity gene was successfully isolated.
Although other factors such as the environment and metabolic capacity do play a
role, the signal importance of genes is only beginning to be understood.
The very existence of genes that can be
controlled suggests that isolating a few critical processes or genes may be
enough to slow or halt aging and extend the life span of organisms. Experiments
with yeasts, worms and fruit flies have borne out these hypotheses.
While the research has not moved beyond these relatively simple organisms,
there is a degree of excitement amongst scientists that the preliminary
findings on ageing mechanisms may soon apply to more complex organisms. Thus,
showing that organisms have a fixed life span may be no longer valid. There
seems to be increasing scientific consensus about increased longevity and
potential immortality. Enough at least to warrant a discussion on the side
effects of increased longevity on the sociopolitical aspects of human existence,
such as law.
3 Immortality and Morality
(i) Pragmatic Considerations
Theoretically, moral discourse should
play an important role in determining whether anti-ageing technology ought to
be developed and utilised. There is, however, an important paradox that
operates here. The hope of immortality has the potential to so drastically
change human living conditions that pragmatism will conquer (moral) principle.
This is more a reflection of human nature than the theoretical bounds of moral
discourse. History has taught us that when the prize is high, morality tends to
take a back seat.
Human beings – both as individuals and
collectively in the form of states or countries – have refused to be
constrained by moral principles. They have been prepared to commit almost
unthinkable atrocities such as murder, rape and torture in order to pursue
self-interested objectives like conquering a portion of land or fulfilling some
supposed ‘noble cause’. On a personal level, individuals regularly flout moral
constraints when they think it is in their personal interest to do so or where
the cost is negligible. Common examples are the white lies that are told during
a job interview and the secrecy surrounding infidelity. The general pattern in
these cases illustrate that the greater the prize, the more people are willing
to violate important moral proscriptions in order to obtain it.
reflects on what people are willing to do in the name of honour, financial gain
or territory, it seems fanciful to think that moral constraints could serve as
effective barriers to the pursuit of the greatest prize of all: eternal life.
In other words, the desire to attain immortality may be so strong that moral
objections are unlikely to stop it. As such, it is expected that humans will
aggressively seek to develop anti-ageing technology and will enthusiastically
avail themselves of the products of that technology.
(ii) Ethical Issues
Despite the pragmatic considerations
outlined above, it may be necessary to consider the possible moral/ethical
objections to immortality. In relation to most morally questionable practices there are two types
of objections that are usually raised. First is the argument that a practice is
intrinsically morally objectionable. The
second objection is that the practice is wrong due to negative consequences
that flow from it. The distinction between these two objections is important.
Once opposition to a practice is grounded merely in possible adverse side
effects stemming from it, the door is left open for proponents of the practice
to irresistibly press their case by implementing safeguards nullifying the
possible collateral harm.
Looking at the first type of objection,
opponents of immortality might assert that it necessarily violates some
important norm that makes it inherently morally wrong. The claim that certain practices
are intrinsically morally wrong has been made by those opposed to euthanasia
and abortion. It has been argued that euthanasia and abortion are wrong because
they violate the right to the life. The important feature of this type of
objection is that it does not rely on the potential undesirable consequences of
a practice to justify its wrongness. In the case of abortion and euthanasia,
this type of objection ensures that the debate does not automatically focus on
the possibility of appropriate safeguards to address incidental undesirable
consequences stemming from the practices. Supporters of the practices are
instead forced to first overcome the threshold issue of whether the practices
are morally wrong per se.
Within the debate on immortality an argument
along these lines is not tenable. Infinitely extending life does not necessarily involve the infringement of
any type of recognisable human right or interest. The only party directly involved in the process is the
person whose life has been extended. There is no question that such a party has
not had any of his or her interests violated; in fact the opposite is true, as
free will has been expressed as a desire to prolong life.
The second line of argument objecting
to immortality is stronger. Parties that could be indirectly affected by
immortality raise the issue that longer life may lead to undesirable social
consequences. Increased longevity or immortality will result in a population increase
to a point where the world could not sustain any more people, possibly causing
a freeze on procreation. The parties that could be most adversely affected by
this are the distant or not yet born generations that will be deprived of
existence due to the infinite or vastly increased life span of the present generation.
However, it is unclear how much weight should be given to the interests of
future generations. Eminent ethical philosophers such as Peter Singer and Derek
Parfit concede that the ethical choices that involve bringing a being into
existence are amongst the most perplexing moral issues.
It appears that the answers to such questions depend largely on the moral
theory one adopts. In this regard, there are two main types of contemporary
The first theory is the non-consequentialist or deontological school of thought.
Proponents of this theory claim that the appropriateness of an action is not contingent
upon its instrumental ability to produce particular ends, but follows from the
intrinsic features of the act. It is for this reason that the notion of
absolute, or near absolute, rights is generally thought to sit most comfortably
in a non-consequentialist ethic. Consequentialist moral theories claim that an
act is right or wrong depending on its capacity to maximise a particular
virtue, such as happiness. The leading contemporary non-consequentialist
theories are those which are framed in the language of ‘rights’. Rights talk
transcends all areas of moral discourse and is now the conventional moral
currency. There is no shortage of rights based theories; they mainly differ on
the precise rights which are claimed, the basis of the rights and the
absolutism with which they are applied. The main role of rights in
deontological theories is to protect people from being compelled to do something
against their wishes simply for the good of another or for the general good.
Under a non-consequentialist
rights-based notion of morality it would seem that the rights of future
generations carry very little weight. A characteristic feature of most rights
is that there is a correlative duty. Thus, the right to be brought into
existence would depend upon there being a duty on people to procreate. Joel
Feinberg asserts that the rights of children are contingent rights, contingent
upon the child’s birth. Thus, a child does not have the right to be born, but
if it is born, then ‘various interests [she or] he will come to have after
birth must be protected’.
Even if it does make sense to assert that as yet unidentified potential beings
have a right to be brought into existence, this right must be balanced against
the right of existing people to maximise their longevity. There is certainly no
reason to believe that the contingent right should prevail, although as we have
argued previously, due to epistemological difficulties with the concept of
non-consequentialst rights, there is no principled basis for weighing competing
The second view is that of the
utilitarian (consequentialist) account of morality. Here, a stronger case can
be made against immortality. It could be argued that the utility of time
diminishes as it becomes more abundant.
That is, that there is an inverse relationship between the amount of
time available and the amount of happiness that is generated by each unit of
There seems to be some attraction to the argument that ten people living 100
years each will experience more net happiness than an individual who lives for
1,000 years. This conclusion is by no means certain. It could be countered that
it is far greater to lose something which someone possess (life) than to never
experience it at all. Hence happiness would be maximised if the 10 potential
people were not brought into existence. Overall, it would seem that given the speculative nature of such
interests it is simply not clear how the utilitarian scales weigh up in this
regard. There is obviously ample scope to postulate further regarding the
manner in which the utilitarian calculus should be resolved. Even if the sums
ultimately stack up against the pursuit and attainment of immortality, it is
not likely to subside progress towards the search for greater longevity for the
reasons stated earlier.
4 Legal Changes and Immortality:
How the law should adapt to make
allowance for increased longevity or immortality is a difficult issue. The law
tends to regulate areas of important human concern. If much greater longevity
continues or immortality is achieved some things will become less important and
others will take on greater significance. Exactly how a dramatically increased
life span will change the legal system and society as we know it is a topic
that will test even the most grandiose imagination. It is apparent that there
will need to be drastic changes in the areas of family, probate, and employment
law, for example. Rather than embarking on this uncertain path and theorising
about possible changes to the human condition as a result of immortality, we
focus on one basic change that will need to be made to legal principle assuming
that living conditions and human aspirations remain relatively similar, that is sentencing principles. This is not the
only change that will need to occur, nor the most significant. However, criminal sentencing rules
illustrate a practical dimension to the discussion thus far.
Increasing human longevity will have
significant ramifications for sentencing law and practice. The manner in which
we presently punish those who break the law is very sensitive to fluctuations
in the human life span. This has always been the case but it is a point that
has thus far been completely ignored by the legislatures and courts. A continued
failure to acknowledge this may impair the capacity of the criminal justice
system to process and achieve its goals.
Sentencing law and practice will need
to change to account for increasing human longevity to ensure that sentencing
continues to fit the crime committed. The intuitively appealing notion that the
punishment should be commensurate with the seriousness of the offence is given
formal legal recognition through the principle of proportionality. The
principle of proportionality operates to ‘restrain excessive, arbitrary and
by requiring that the punishment does not exceed the gravity of the offence. This
principle is more fully explained by the High Court of Australia in Hoare v The Queen which stated that ‘[a] basic principle of sentencing law is
that a sentence of imprisonment imposed by a court should never exceed that
which can be justified as appropriate or proportionate to the gravity of the
crime considered in light of its objective circumstances.’
Proportionality is one of the main
objectives of sentencing. In fact, the Australian High Court decisions of Veen (No1) v The Queen
and Veen (No 2) v The Queen
have gone as far as pronouncing it the primary aim of sentencing in Australia.
It cannot be trumped even by the goal of community protection, which at various
times has also been declared as the most important aim of sentencing.
Proportionality has been given statutory recognition in most Australian jurisdictions.
For example, in Victoria the Sentencing
Act 1991 (Vic) provides that one of the purposes of sentencing is to impose
just punishment, and that in
sentencing an offender the court must have regard to the gravity of the offence
and the offender’s culpability and degree of responsibility.
The Sentencing Act 1995 (WA) states
that the sentence must be ‘commensurate with the seriousness of the offence’,
and the Crimes Act 1900 (ACT) provides
that the sentences must be ‘just and appropriate’.
This is true in many other jurisdictions as well. For example, in relation to
the Canadian sentencing system it has been noted that, ‘the paramount principle
governing the determination of a sentence is that the sentence be proportionate
to the gravity of the offence and the degree of responsibility of the offender
for the offence’. Similar views are expressed in the
White Paper underpinning the Criminal
Justice Act 1991 (UK), which declares that the aim of the reforms is to
introduce a ‘legislative framework for sentencing, based on the seriousness of
the offence and just deserts’.
Viewed more closely the proportionality principle has two
limbs. The first weights the seriousness of the offence and the second weights
the severity of the punishment. The principle then prescribes that these limbs
should be in equilibrium. In order for the principle to operate properly, it is
important to understand how human life span affects both limbs.
This is more obviously the case in
relation to the severity of the punishment. The harshest form of punishment
found in most Western countries’
criminal justice systems is incarceration:
loss of freedom imposed upon a prisoner deprives him or her of a finite resource,
namely time. ... Death is a certainty for everyone, and it can therefore be
argued that all prisoners must inevitably experience an irreplaceable loss of
The primary reason, therefore, that
imprisonment is regarded as a harsh punishment is that it deprives offenders of
a finite resource – namely time. When this resource is more abundant, it
logically follows that for the same intensity of punishment to be inflicted a
longer sentence must be imposed. A twenty year term of imprisonment is likely
to cause a lot of hardship in the context of a 60 year life span, but is likely
to be viewed as merely a hiccup in a life lasting 200 years. The same argument
holds true for other criminal sanctions such as fines and licence
disqualifications. These punishments
also depend upon a finite conception of the human life span. To account
for this relativity, the most obvious response is to tie the length or (in the
case of fines) magnitude of the penalties to increases in average human life
span. Thus, offences which attract a 10 year term of imprisonment in the
context of a community where average life expectancy is 80 years, should be
increased to 15 years when the average life expectancy is 120 years. Even a one
thousand-year term of imprisonment is inconsequential in the context of an
immortal life. Accordingly, consideration will need to be given to a new range
of criminal sanctions. To this end, new sentencing options could include the annulment or
suspension of an offender’s academic qualifications and the making of orders
preventing an offender from working or being enrolled in an educational or
The proportionality thesis is also
complicated by the fact that the severity of many crimes (in terms of their
effect on the victim) may change as a result of increased human longevity. For
example, an injury sustained as a result of an assault which takes a year to
heal may be less significant in the context of a 200 year life than a 70 year
life. On the other hand, a homicide offence may be far more serious when a life
is cut short by 180 years as opposed to 50 years.
It is obviously even far more serious when the life that is cut short would
have been indefinite. On the other hand, property offences may be relatively
less serious as the victim has more time to recover the loss. For example, a
$1000 deprivation is likely to be less consequential in the context of a longer
lifetime where a victim accumulates $5 million in resources than when, due to a
shorter lifetime, a victim only accumulates $1 million. Issues such as these
have been ignored in most studies on sentencing. It is important that
adjustments to offence seriousness are consciously made to reflect the changing
gravity of criminal offences in terms of the effect on the victim. It needs to
be borne in mind how victims will overcome an offence given the time and resources
that they have and the impact that this has on their life overall. The relative
nature of time is missing from most sentencing calculations.
Human longevity is increasing at a
rapid rate. So much so that the prospect of immortality in the not too distant
future is no longer merely science-fiction. There are tenable moral arguments
that can be made against the pursuit of immortality or significantly increased
human longevity. Regardless of the logical force of such arguments, they are
unlikely to curtail the pursuit of increased longevity. Quite simply, the prize
is too great to be frustrated by an appeal to a normative standard. History
shows that in such circumstances self-interest is likely to prevail.
Hence, scientific advances in
anti-ageing technology are likely to continue at a rapid rate. The purpose of
this paper is to raise the awareness of lawyers and law makers of two important
issues. First, that scientific advances in anti-ageing technology will not
abate and secondly, that this fact underlies the need to develop and refine
legal principle. Although focus was given to sentencing, it would not be
difficult, however, to multiply such examples. It is hoped that in cases where
time and human life spans are relevant, a central consideration in law reform
proposals will be to assess how increasing human longevity affects legal
Broderick, ‘Eternal Youth? It’s all in the Genes’, The Age (Melbourne) 19 April 2000:
John Wilmoth, ‘The Future of Human Longetivity: A Demographer’s Perspective’
(1998) 280 Science 395; see also the
special issue of Science, volume 275,
1996 devoted to the issue of ageing.
McGee, ‘Ethical Issues in Genetics in the Next 100 Years’
will provide a brief overview of the literature in this area, and refer
interested readers to more detailed material on the topic.
eg, Kristin Leutwyler, ‘Turning Back the Strands of Time’ (Feb. 2, 1998) Scientific American 36.
Jeffrey Kluger, “Can We Stay Young” (Nov. 25, 1996) Time 70.
G Bodner et al, ‘Extension of Life-Span by Introduction of Telomerase Into
Normal Human Cells’ (1998) 279 Science
L S Luckinbill et al, (1984) 38 Evolution
D B Friedman & T E Johnson, (1988) 118 Genetics
for example, S M Jazwinski, ‘Longevity, Genes and Aging’ (1996) 273 Science 54.
See also L Guarente et al, ‘Aging, Life Span and Senescence’ (1998) 95 Proceedings of the National Academy of
Science 11034; Lakowski and Hekimi (1996) 272 Science 1010.
on the scientific advances in aging are now commonplace – stretching human life
span is no longer the province of ‘charlatans and hucksters’. See G Kolata,
‘Pushing Limits of the Human Life Span’ The
New York Times (New York, USA), 9 March 1999, F1; D Banks, ‘Telomeres,
Cancer and Aging’ (1997) 278 Journal
American Medical Association 1345; M Fossel, ‘Reversing Human Aging: It’s
Time to Consider the Consequences’ (1997) 31(4) The Futurist 25. For a more guarded view of cellular effects and
their relationship to ageing in humans, see T de Lange, (1998) 279 Science 334; J Wilmoth, ‘The Future of
Human Longevity: A Demographer’s Perspective’ (1998) 280 Science 395
P Singer, Practical Ethics (2nd ed,
CUP, Cambridge, 1993).
example, see J Rawls, A Theory of Justice
(Belknap Press, Cambridge, Mass, 1971).
W N Hohfeld, Fundamental Legal
Conceptions as Applied in Judicial
Reasoning and Other Legal Essays, in W W Cook (ed), (Yale University Press,
1919) and his notion of claim-rights.
 J Feinberg,
‘Is There a Right to be Born?’ in J Feinberg, Rights, Justice and the Bounds of Liberty (Princeton, Princeton
University Press, 1980) 211.
M Bagaric and R Haigh, ‘Loyalty and the
Law: Dealing Legally with Mothers, Archbishops and Football Clubs’ (2001) 10 Nottingham LJ 1.
is the same argument (in the context of money, rather than time) used to
justify progressive taxation.
Fox, ‘The Meaning of Proportionality in Sentencing’ (1994) 19 Melbourne University Law Review 489,
167 CLR 348, 354.
143 CLR 458, 467.
164 CLR 465, 472. More recently, the High Court has endorsed the importance of
the proportionality thesis in R v Ryan  HCA 21.
example, see R v Channnon (1978) 20
ALR 1; R v Valenti (1980) 48 FLR 416,
Sentencing Commission, Sentencing Reform:
A Canadian Approach (Ottawa, 1987) 154.
Britain, Home Office, White Paper, Crime,
Justice and Protecting the Public (London, HMSO 1990), para 2.3. For
judicial endorsement of the principle in the United Kingdom, see R v Skidmore (1983) 5 Cr App R (S) 17,
19; R v Moylan  1 QB 143, 147.
obvious exception being the United States, where the death penalty is still
available in many States.
Ashworth and E Player, ‘Sentencing, Equal Treatment and the Impact of
Sanctions’ in A Ashworth and M Wasik (eds), Fundamentals
of Sentencing Theory (Clarendon Press, Oxford, 1998) 251, 259-60.
has been argued as a useful approach even in today’s communities: see M
Bagaric, ‘New Criminal Sanctions: Inflicting Pain Through the Denial of
Employment and Education’ (2001) Criminal
Law Review 184.
could be countered that murder is just as serious and the loss is just as great
irrespective of how many years the victim has lost. Certainly this is the
conclusion that follows if one adopts the view that all life is equally sacred.
However, on close reflection this may not be consistent with conventional moral
thinking. For example, many people believe that euthanasia is justifiable only
where the patient is terminally ill. Quite often, but certainly not always, the
level of grief expressed towards the passing of very old people is less than in
the case of younger people. Hence, the adage, `at least she/he had a good
innings'. In any event, it is clear that this is an issue which requires
detailed normative evaluation.