Proposed one-size-fits-all mandatory minimums
are ill-advised
Legislation should not limit judicial discretion to such an extent that the judiciary is effectively compelled to act as a rubber-stamp for the executive.

The following is an open letter to Minister of Justice Delroy Chuck from Jamaicans for Justice.

We, the undersigned, are placing on record our strong objection to the Government's proposed increases to the mandatory minimums surrounding capital and non-capital murder.

While we acknowledge that there is a need for a broader review around sentencing and application of discounts, it is our collective position that the tabled proposals are manifestly excessive. There is also the recognition that while the administration of justice must be reviewed by the legislature, there must be balance and effective safeguards — not an unjust one-size-fits-all approach as is currently being contemplated.

According to announcements made by your ministry, the proposed changes include amendments to the Offences Against the Person Act (OAPA) and the Criminal Justice (Administration) Act. Under the Offences Against the Person (Amendment) Bill, amendments to section 3(1)(b) of the OAPA would increase the mandatory minimum sentence from 15 to 45 years. Where a capital murder has been committed, the mandatory minimum sentence to be served before being eligible for parole moves from 20 to 50 years under section 3(1C)(a), and under section 42(F) of the Criminal Justice (Administration) Act, the term of years to be deemed as life imprisonment increases from 30 to 50 years when the offence committed is murder.

It is our position that, while the public may clamour for harsher penalties, parliamentarians must be mindful and enact laws that address the root of the problems rather than respond with knee-jerk reactions that will not only provide no real solution but are likely to exacerbate an already under-resourced and burdened criminal justice system. We note that, despite public perception, judges do not have sweeping discretionary unchecked powers; mandatory minimums already exist and there are sentencing guidelines to consider both mitigating and aggravating factors.

Therefore, it is our position that if these proposals pass, they will have far-reaching implications for human rights standards and the criminal justice system.

Mandatory minimums may have the following negative impact:

1) Increase court backlogs and reduce access to justice for victims

Given the challenges with securing convictions due to a lack of sufficient evidence and witnesses coming forward, plea bargaining is important in securing justice for victims as well as freeing up time and much-needed resources for cases in which prosecutors and the accused cannot reach an agreement and a trial becomes necessary.

The proposed mandatory 30-year sentence to be imposed, even after a plea bargain is reached, disincentivises the accused and, therefore, undermines expedient case closure. This will also reduce motivation to testify against a co-accused, hindering the efforts to dismantle criminal networks.

The plea bargaining process has helped reduce court backlogs. We ask, given the recent advances that have been made in reducing backlogs, how will mandatory minimums affect those improvements?

2) Lead to prison overcrowding and a breach of international laws

Jamaica's maximum security correctional facilities were built during and shortly after slavery and are not fit for purpose. Currently operating significantly over capacity, they are anachronistic and inhumane. Quite frankly, the country's prison system is in breach of international minimum standards and constitutes violations of Articles of the United Nations' International Covenant on Civil and Political Rights (ICCPR).

At the end of 2021 the total adult custodial population was 3,565 people, with the majority of male offenders being housed at the Tower Street and St Catherine adult correctional centres. Both of these facilities are currently operating above capacity, 200 per cent of its 850-inmate capacity and 107 per cent of its 850-inmate capacity, respectively. Therefore, if the number in the prisons will be increased for a longer period based on high mandatory minimums, it will be a further strain on the limited and archaic present structures.

In 2021 the number of newly incarcerated people was 903, of which 369 of them were reoffenders resulting in a recidivism rate of 41 per cent, exceeding global standards. This brings into question the effectiveness of rehabilitation and psychosocial care for inmates. We believe that if a youth offender, for example, is to be incarcerated for a lesser crime, he has a greater chance of reoffending than if he had not been incarcerated in the first instance, standing the risk of being drawn into the loop of the criminal networks.

3) Undermine principles of rehabilitation, reform, and restorative justice

We note that mandatory minimums, without any clear differentiation of their application regarding culpability and age of the offender, for example, do undermine the Government's own efforts of restorative justice, rehabilitation, and reform as key instruments to prevent reoffending.

It is noted that among a population comprising close to 50 per cent of unskilled incarcerated people, mostly men, rehabilitation, rather than excessively lengthy sentences, must be considered — a balance between a just sentence and the need for societal reintegration.

In fact, the Bureau of Standards Jamaica has been engaged by the Ministry of Justice to draft a policy for the Department of Correctional Services in which it appears rehabilitation is almost mandatory. Also, we note the significant increase in financial support for restorative justice as an instrument of mediation and healing implemented by the Ministry of Justice. In our view, diverting people from incarceration, when appropriate, can prevent crime before it happens, promote rehabilitation, and reduce recidivism in a manner that makes sense economically and socially.

4) Unjust sentences for youth offenders and other vulnerable groups

In keeping with the Convention on the Rights of the Child, two main principles upon which the juvenile justice system is based are that children should be detained only as a last resort and they should be detained for the shortest appropriate period.

Importantly, the courts should be able to consider several mitigating factors relating to the offender, such as the offender's mental state, diminished responsibility, provocation, and the possibility of reform. Take, for example, a victim of domestic violence who is repeatedly abused and sexually assaulted and who commits murder. Is it a just sentence if the 35- or 40-year mandatory minimum is automatically imposed? What of the young 16-year-old who was forced to commit a crime? We hope that the announced consideration of the review of the Child Care and Protection Act will address some of these concerns.

5) Undermining judicial discretion and parole boards

Mandatory minimums impose unacceptable restrictions on judicial discretion and independence and undermine the fundamental rule of law principles. We maintain that judges must have the ability to account for the unique circumstances of the offence and offender to ensure fairness in the sentencing process for both victim and offender, particularly in cases in which either is part of a vulnerable group.

Legislation, particularly that which seeks judicial authorisation for executive action, should not limit judicial discretion to such an extent that the judiciary is effectively compelled to act as a rubber-stamp for the executive. The judiciary should always have sufficient discretion to ensure they can act as justice requires in the case before them.

We are not articulating that judges do not make mistakes; they are humans, some of whom have their own biases. However, we remind you that the country's prosecutor has the right to appeal in instances of judicial error.

It is also manifestly unjust that an individual who is reformed will have to serve excessive sentencing before being considered for parole. We remind that eligibility for parole is not just years served, but a reformed character for social integration. Thus, proportionality is key.

We, therefore, call on you and the Cabinet to reconsider its position on mandatory minimums based on the above-mentioned reasons. Generally, we propose that the suggested periods be reduced and that amendments to safeguard against miscarriages be simultaneously considered.

We agree that there are, unquestionably so, some people in prison who have committed heinous crimes and could pose a serious threat to public safety if released. By cautioning against excessive mandatory minimums we are not suggesting that violence should be taken any less seriously. On the contrary, we suggest that Jamaica invests more heavily in violence-prevention strategies that will have a more significant and long-term impact on reducing violence, which, again, reflects what most victims of violent crime want.

We also agree that sentencing guidelines and provisions around plea discounts are worth reviewing. However, it is our position that such a review must consider other serious offences, such as rape. Any consideration must also be evidenced and policy driven. Again, a reform was required. But this reform is extreme and limited.

We welcome the announcement that the proposals are going to a joint select committee (JSC). Some of the undersigned, such as Jamaicans for Justice, are prepared to make submissions to the JSC once it is formed so that our positions are considered.

Some of our immediate recommendations include:

i) Independence of the Parole Board, as well as applicant presence at parole hearings

ii) Statutory scheme for police and other government bodies to retain and disclose information that might be helpful to the presentation of a criminal case by both the prosecution and defence

iii) Improving legal aid rates, removing legal aid exemptions, and providing legal aid at the privy council

iv)Director of Public Prosecutions (DPP) to approve all cases prior to charges being laid by the Jamaica Constabulary Force.

v) Universal use of body-worn cameras by police and Jamaica Defence Force when assisting the police.

Mickel Jackson is the executive director of Jamaicans for Justice; Carla Gullotta is the executive director of Stand Up for Jamaica; Horace Levy is a human rights activist; and Isat Buchanan is an attorney-at-law.

Isat Buchanan
Mickel Jackson
Horace Levy
Carla Gullottaphoto

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