Dear Editor,

Since the Government announced its intention to impose much harsher penalties on individuals convicted of murder, there has been fiery debate in the House of Parliament, with an equally resounding approval from the wider society.

Whilst the latter is understandable, given our high crime rates, I urge the public and the Government to reconsider what these mandatory sentences really mean as well as whether they will truly result in a reduction in crime, particularly murder.

Currently, as per Section 2 of The Offences Against The Persons Act, for capital murder, which includes murder of officials whilst in the furtherance of their duties; murder of witnesses in cases; murder committed during a sexual offence, burglary, arson; murder for hire etc, the current sentence is either death or life imprisonment without parole. The reality being that people so convicted oftentimes serve sentences of about 15-20 years and are then released, particularly in circumstances of what the parole body considers ‘good behaviour’.

The suggested amendment is for the sentence to remain death or life imprisonment. But if life imprisonment is imposed, that the sentence should be a minimum 50 years before consideration for parole.

For non-capital murder, the current penalty is life imprisonment or a fixed term of imprisonment. When a life sentence is imposed, the offender must serve at least 15 years before consideration for parole. For a fixed-term sentence, at least 10 years must be served. The suggested amendment is that for a life sentence the convicted killer must serve at least 40 years before being eligible for parole. If a fixed term of imprisonment is imposed, it must not be less than 30 years, but they must serve at least 20 years before becoming eligible for parole.

If these amendments are imposed, the obvious result is a removal of the usual discretion of the judges.

Jamaica is tethering dangerously close to offending the doctrine of separation of powers on which our governance rests based on this thrust to implement the new amendments. The issue lies in the fact that these penalties are absolute, which takes the discretion out of the hands of the judges.

Unlike that which most people operating outside the justice system believe, this discretion isn’t to allow people “fi get weh wid murder”, literally and figuratively; instead, what it allows is for the nuances of each case to be examined and treated accordingly.

Take for instance a situation in which a mother alerts school administrators that her son has been beaten by schoolmates on numerous occasions. Now, without inciting violence, the reality is the young man, in circumstances like these, can reach a breaking point and defend himself against these attacks. If this results in a homicide, are we comfortable forcing the court to impose a minimum sentence of 20 or 30 years on this young man?

A reasonable and well-thinking person would say no. The fact is, in a society as emotionally charged as ours, these types of possibilities and similar scenarios are endless. It is my view that the harsh and mandatory sentences being proposed would not be appropriate for such circumstances

It is noted that Minister of Justice Delroy Chuck indicated that the prosecution and defence would still have The Criminal Justice (Plea Negotiations and Agreement) Act, which allows for negotiation concerning sentences in which an offender pleads guilty. However, the two together cannot stand. We have seen the difficulty in this with the new Firearms Act, 2023. When Parliament makes these amendments to statutes in which strict penalties are stated, in the execution of their duties, both the prosecution and defence operate within its remit. Without the amended Acts speaking specifically to an authority that allows them to do otherwise, they just don’t.

One of the Acts proposed to be amended in this raft of changes is the Child Care and Protection Act. With the proposed changes for capital murder, a child 14 to 17 can’t be sentenced to death but could be sentenced to life imprisonment or a fixed term of 50 years and must serve at least 20 years before being considered for parole. When a child 14 to 17 years has committed non-capital murder, they can be sentenced to a term of not less than 30 years and must serve at least 15 years before being considered for parole.

It is my view that crimes committed by children must be left open to be treated with the intervention of counsellors, probation officers, social workers, and the members of the judiciary directly involved.

Children of this age group have been scientifically proven to not be cognitively mature enough to make certain decisions. Many such children are operating in a space that these amendments mean nothing to them until they find themselves on the wrong side of the law. In other words, it won’t be a deterrent.

Oftentimes their crimes are in the moment and not well thought out, a prime example being the number of killings from school fights in recent months and weeks.

Imposing mandatory penalties in the area of murders when we have a high number of cases can only serve to create further backlog. If an accused has no room to negotiate, then there is no incentive for him/her to enter a guilty plea; the odds are that they will take their chances in a trial. It, therefore, means that the proposed amendments would amount to a step back and not forward.

The Government is urged to consider increasing the maximum penalties for the offences rather than increasing mandatory times.

Patrice Riley

Attorney-at-law

patricerileylaw@gmail.com