Noel Chambers died after spending 40 years in prison without ever standing trial. He was deemed “unfit to plead”; meaning the court found that he was not mentally fit to stand trial. He was detained “at the governor general’s pleasure” until he died in his cell. This is legal in Jamaica.

For decades our justice system has locked away hundreds of mentally ill individuals without a trial. The public came to learn of Noel Chambers because he died while incarcerated and the Independent Commission of Investigations (INDECOM) published a report highlighting his death. The findings shocked the nation. But the circumstances surrounding his imprisonment are not new.

A familiar story

It is still legal in Jamaica to imprison someone indefinitely at the “pleasure” of the court or governor general. INDECOM reports that it is aware of 146 mentally ill individuals imprisoned without having been tried. Last year, the Legal Aid Council reported that it was aware of 313 such individuals. Human rights organisations and legal aid attorneys have worked on dozens of cases over the years. The true number is likely unknown.

Do you remember Walter Blackstock, who was imprisoned for over 30 years without trial only for it to be discovered that the prosecution had no case to bring against him? He was released last year.

Do you remember Alfred Nettleford (also known as Ivan Barrows) who was imprisoned for 28 years without trial for allegedly breaking a window (a maximum sentence of five years)?

The Government, using our taxpayer dollars, had to pay him $9 million in compensation.

Imprisonment is not the only option under law

Jamaica’s Criminal Justice (Administration) Act establishes four options for courts in handling individuals with severe mental illnesses who are unfit to plead. Locking them away in prison is just one option. Under Section 25(C)(2), if a person is not mentally fit to plead, the court may:

(a) remand the person in custody “at the court’s pleasure”;

(b) commit the person to a psychiatric facility;

(c) make a supervision and treatment order; or

(d) make a guardianship order.

Prisons are usually meant for people convicted of crimes — unless you are deemed severely mentally ill, then it becomes legal to imprison you indefinitely or until you die. Ironically, these individuals are sent to prison to receive mental health treatment until their states improve.

The Department of Correctional Services (DCS) has often complained that their prisons are not equipped to manage these cases. Just last November their Director of Medical Services Dr Donna-Michelle Royer-Powe reiterated the lack of capacity and frustration with the system.

When the Government breaks the law

In 2006 the Criminal Justice (Administration) Act was amended to create new legal obligations that have also been breached. Section 25(D) of the Act legally mandates the commissioner of corrections to a report at least once a month on the condition of every incarcerated person deemed mentally unfit to plead. It requires that a judge review the report and “give such directions as he thinks fit”.

Section 25(D)(3) legally mandates the registrar/court administrator of the Supreme Court/Parish Court to “keep a register” of all such individuals, including a summary of each report received about them. It also requires those officials to alert the court of any “failure to submit a report” by the commissioner of corrections “within seven days” of the deadline passing.

In these cases, the stakes are high. Noel Chambers was actually found mentally fit to stand trial twice during the four decades he spent in prison. His family wrote many letters. Legal aid attorneys even petitioned the governor general — at whose pleasure he had been detained — for his release.

The judiciary, in a rare public apology, admitted that “systematic failure” on its part contributed to Chambers’ tragic situation. This is appreciated, but who will be held accountable? And what lasting reforms will be implemented?

Where do we go from here?

Firstly, we should rethink this law. Why should the courts be able to imprison someone indefinitely at their pleasure without trial? We can design something better.

The truth is that Jamaica and many other countries inherited this legal tradition from England and perpetuated it. But mounting research shows that better alternatives exist for those with severe mental illnesses.

In our opinion, we should reform the law to discontinue the practice of imprisoning mentally ill individuals without a trial. Imprisoning them is neither legally required nor beneficial for their treatment. Making serious investments in mental health services over time will help improve the viability of the existing legal alternatives.

Secondly, we should complete the process of implementing a credible case management system across the courts that allows for linkages with the Department of Correctional Services and the police. Without modern case management practices and technology people may continue to fall through the cracks.

Since the 2007 Justice Reform Task Force, the establishment of these systems has been promised. When will those promises be fulfilled?

Thirdly, the judiciary should include independent stakeholders in its announced review of the current law and practice. It was announced on June 9, 2020 that Chief Justice Bryan Sykes commissioned a mental health task force to produce a report within 120 days. In our opinion, the same entities at fault cannot be exclusively responsible for assessing themselves. We encourage the judiciary to include independent stakeholders with experience in human rights in this important review.

Finally, provide periodic updates to the nation on the status of the review and implementation of reforms, including data on the status of cases. To do things differently this time, let us structure a mechanism for public accountability.

Justice, truth, be ours forever.

The above piece was authored and submitted on behalf of Jamaicans For Justice (JFJ). Send comments to the Jamaica Observer or communications@jamaicansforjustice.org.