Since the Government announced its intention to impose much harsher penalties on persons convicted of murder there has been fiery debate in 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, for capital murder (per Section 2 of The Offences Against The Person Act, capital murder 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 et al) the current sentence is either death or life imprisonment without parole. The reality being that the 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, with a minimum 50 years before consideration for parole.

For non-capital murder, the current penalty is life imprisonment or a fixed term. Where 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. The suggested amendment is that for 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 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 what most operating outside of the justice system believe, this discretion isn’t to allow people ‘fi get weh wid murder’. Instead, what it allows is for the nuances of each case to be examined and treated accordingly.

Recently in the news is the story of a father pleading with a certain high school to give some attention to a situation in which his son had been beaten by schoolmates on at least 17 reported occasions. Now, without inciting violence, the reality is either the young man or his father in circumstances like these can reach a breaking point and ‘defend’ themselves. If this results in a homicide, are we comfortable forcing the court to impose a sentence of a minimum 20 or 30 years on either of these two?

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 Justice Minister 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 where 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, where strict penalties are stated, in the execution of their duties both sides 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. This is particularly, in the range of those 14-17 years old. The present law is that they can be sentenced as an adult. With the proposed changes for capital murder, such a child 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. Where such a child 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. Oftentimes their crimes are in the moment and not well thought out; prime example being the number of killings from school fights in recent months.

Imposing mandatory penalties in the area of murders where we have a high number of cases can only serve to create further backlogs. 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 rather take their chances in a trial. It therefore means that the proposed amendments would amount to a step back and not forward.

Patrice Riley is an attorney-at-law. Send comments to the Jamaica Observer or patricerileylaw@gmail.com.