JAMAICA last carried out the sentence of death in 1988 on an execution warrant signed by the then Attorney General Oswald Harding QC, OJ. Since that time, Harding — who later became the dean of the Faculty of Law, University of Technology, Jamaica (UTech) — has been one of the strongest critics of the death penalty in Jamaica.

UTech Faculty

There must have been — and must be — interesting debates on the question of the death penalty within the UTech Faculty of Law, for Harding’s predecessor as dean of that faculty, as a former Director of Public Prosecutions for Jamaica, Kent Pantry QC, CD, was duty-bound to press the State to carry out death penalty convictions.

Nor, of course, have the debates been confined to UTech’s law faculty. In the 1970s, then lecturer in law at the University of the West Indies (UWI), Mr Delroy Chuck, MP, wrote the book, Should We Hang? — a text which answered the question in its title firmly in the negative.

In the decade of the 1970s as well, the then head of the Norman Manley Law School, retired Justice Aubrey Fraser chaired a committee on death penalty issues in Jamaica, with Chuck offering his research skills to the committee. Across the years, other UWI lecturers have contributed substantially to this debate; Professor Bernard Headley (from the Department of Sociology, Psychology and Social Work) has been exceptionally cogent in presenting the case for abolition.

Supporting arguments

Beyond academia halls, the death penalty continues to stir controversy, although Jamaica has not carried it out for 27 years. Persons in support of the ultimate sanction argue that, without this punishment, the value of life will be diminished. We will be vulnerable to murder by criminals with nothing to deter them. We will also be deprived of an element of justice, for, with the death penalty removed, the one who has brought death will not be required to face death.

It is also argued that the death penalty brings closure to the family of victims, and that it is biblically supported, through Old Testament pronouncements on the equivalence of an eye for an eye. Occasionally, too, persons register their resentment for murder by arguing that the State should not be called upon to bear the economic cost of keeping vicious murderers alive.

Murder rate

Against the background of Jamaica’s shockingly high murder rate, some persons also maintain that, even if we are to abolish the death penalty, the time is not right to do so. For these persons, abolition in the midst high criminality and wanton disrespect for life would amount to surrender by the State to the forces of evil.

For the foregoing reasons, it is not surprising that a significant majority of Jamaicans continue to support the death penalty. And this majority support, in the context of democratic decision-making, adds another consideration in favour of retaining the punishment — the people want it, so the policymakers are pressed to keep it. This lesson emerges quite clearly from parliamentary debates on the subject from the 1970s, through the 2008 conscience vote on the subject, to the present.

In Opposition

And yet, many persons, particularly but not exclusively among the intelligentsia, are distressed that the Jamaican State retains the right wilfully to execute human beings. Naturally, some of the arguments for abolition of the death penalty seek to refute perspectives from the other side of the debate. So, for example, the Independent Jamaica Council for Human Rights maintains that the death penalty is not a deterrent — a point which is difficult to assess in the context of Jamaica, where the sentence has not been carried out for 27 years.

Abolitionists also argue that the death penalty promotes retribution (a base sentiment) and not justice. It is, they further suggest, a cruel, inhuman, barbaric, and uncivilised form of State action, which is unjustifiable in modern society. For the abolitionists as well, biblical authority within the New Testament points to the role of the other cheek in promoting social interaction; and, in any case, they suggest, passing references to the lex taliones from ancient times should not be determinative of legal perspectives in 21st century Jamaica.

Redemption and error

Two further considerations give force to the abolitionist perspective. The first concerns the purpose of punishment in a modern legal system. Punishment, it is said, must serve to deter, but it should also have a redemptive function: It should provide even the most vicious criminals with the opportunity of rehabilitation. This function is utterly defeated if society, with our implicit consent, executes some of those who violate social norms. When it is recalled, too, that most persons vulnerable to execution have faced poor, oppressed circumstances from birth, the death penalty may be viewed as society’s final infliction of unfairness upon persons whom we should be working to redeem.

Secondly, abolitionists have a strong case based on the possibility of mistake in death penalty cases. Even in societies with sophisticated police investigative techniques, mistakes are made. And mistakes are quite likely in murder cases where social revulsion is strong, we feel beleaguered, and we want to see justice done on behalf of the victims.

In these circumstances, the State is under special pressure to produce results, and in “leaving no stone unturned”, they may produce the wrong stone for conviction. The Innocence Project in the USA serves as a reminder to us all that several death penalty convictions are demonstrably unsound. Jamaica, I would argue, presents an a fortiori case on the risks of mistake in death penalty cases.

Pratt & Morgan

Now, although Jamaica has retained the death penalty as a part of our law, we have not been carrying out the sentence. Our modus operandi has therefore been consistent with abolitionism, while our law, as reflected in the Constitution and the Offences against the Person Act, is pro-execution. This duality has arisen in large part from decisions by their Lordships of the Judicial Committee of the Privy Council, but their Lordships are not alone in this regard.

To begin with, in the famous Pratt and Morgan decision from 1993, the Privy Council held that if the period between the pronouncement of a death sentence and the actual execution of the sentence exceeds five years, the execution would be presumed to be inhuman or degrading. Thus, for the Privy Council, time on death row beyond five years would presumably lead to the death sentence being commuted to life imprisonment.

Consequent upon the Pratt and Morgan decision, several persons on death row had their sentences commuted to life imprisonment. The Pratt and Morgan decision was followed seven years later by the decision in the Neville Lewis Case.

Neville Lewis

In the Neville Lewis case, the Privy Council appears to have extended the Pratt and Morgan approach in at least one significant way. The Court treated the five-year presumption as an automatic rule, so that as long as that period had elapsed, persons on death row would have their sentences commuted to life imprisonment.

On its face, the five-year commutation rule or presumption is justifiable. Persons awaiting execution should have their matters addressed expeditiously. But, in practice, the five-year rule does not take fully into account delays in the normal run of death penalty cases. Also, it does not give due regard to the time taken for cases to be considered by external bodies (such as the Inter-American Commission on Human Rights). The result is that several death sentences, pronounced following Pratt and Morgan and Neville Lewis, could not be carried out.

It should be noted that the Jamaican State has overturned the Pratt and Morgan/Neville Lewis line of cases. In the Charter of Fundamental Rights and Freedoms (2011), Parliament has found that delay in the execution of sentences shall not constitute the basis for commutation of death sentences. In effect, the “death row phenomenon” has been reinstated in our law.

Mandatory death

Another approach by the Privy Council concerning the mandatory death penalty has also had the effect of reducing the possibility of the death sentences being implemented. Prior to the Lambert Watson case, the law in Jamaica was that murders committed in certain circumstances automatically gave rise to a sentence of death. So, for example, murder in the course of certain felonies, murder of a member of the security forces, murder for hire, and murder of more than one person, would be subject to the mandatory sentence of death.

But, in Lambert Watson, the Privy Council held that the mandatory death sentence — as set out in the Offences against the Person Act — was incompatible with the Jamaican Constitution. Specifically, the Court held that the mandatory sentence did not allow judges to treat persons found guilty of murder as individuals when sentencing them to death. Because the sentence was automatic, judges could not decide whether execution was the appropriate sentence in each case. This, for the Privy Council, was inhuman or degrading punishment or treatment, contrary to the Constitution.

Trimmingham

By definition, the Lambert Watson decision reduced the number of death sentences, for, following that case judges have had the discretion whether or not to impose death. In subsequent cases, and especially Daniel Dick Trimmingham v The State, a 2007 decision from St Vincent and the Grenadines, the Privy Council has further restricted the circumstances in which the death penalty may be imposed.

In Trimmingham, the Court confirmed that only the “worst of the worst” or “rarest of the rare” murders may be subject to the death penalty. The Privy Council declined to impose the sentence in what it described as “undeniably a bad case”, because the murder fell short of the exceptional standard of “worst of the worst.” The Privy Council also held that the death penalty should not be applied if there were means of reform of the offender.

The Jamaican Court of Appeal has followed Trimmingham, perhaps most notably in Peter Dougal v R in 2011 (a case in which two persons were murdered as they slept, found not to be among the worst of the worst).

The net effect is that execution is now highly circumscribed in Jamaican law — only for the “worst of the worst murders”, and where there is no prospect of personal reform.

International trends

Generally speaking, the restriction in the death penalty in our domestic law, supported by the Privy Council (as a body), is reinforced by developments at the international level. International law, as reflected for instance in the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights, does not prohibit execution for the most serious crimes.

United Nations Human Rights bodies do, however, frown on the sentence, and an increasing number of States wish to bring about abolition or at least a moratorium. In 2012, the United Nations General Assembly, in Resolution 67/276, voted for a moratorium on the sentence by a margin of 111 votes for, 41 against, with 34 abstentions. And in 2014, United Nations Secretary General Ban Ki-moon, reflecting majority State sentiment, maintained that the death penalty “has no place in 21st century society”, given it cruelty and inhumanity.

States in the European Union have led the way in this regard, declaring Europe to be a “death penalty-free zone”, and supporting strong diplomatic initiatives against the sentence. Within the Americas, 13 states, mainly from Latin America, are parties to the Protocol to the American Convention on Human Rights to Abolish the Death Penalty, and last year, of the States within this hemisphere, only the United States of America reportedly carried out executions.

In sum

Overall, within Jamaica, the arguments appear to be finely balanced with majority sentiment still in favour of executions. The Privy Council has, over the years, sought to introduce safeguards to protect the rights of persons pronounced guilty of murder (as well as others). The Privy Council has also worked to reduce instances in which persons are vulnerable to execution. And, at the international level, Jamaica is swimming against the tide of abolitionism.

Perhaps it is time for Jamaica to reject the death penalty by legislative means, to bring our law in line with 27 years of practice, and with growing international sentiment.

Stephen Vasciannie is Professor of International Law at the University of the West Indies, Mona. He is a former Jamaican Ambassador to the United States of America and the Organization of American States.