NONSENSE!
Lawyers question feasibility of proposed 30-year prison sentences for murder

The Government's planned introduction of legislation to impose minimum 30-year prison sentences for murder convicts has evoked scepticism from some members of the defence bar.

One senior defence attorney, Melrose Reid, is challenging the Administration to model El Salvador and take a frontal fight to criminals, rather than hide behind legislation.

"I am not saying Jamaica is not a scary place to live; you have to lock up inside your house. But why don't they take the step El Salvador is taking instead of affecting the legislation? All the amendments to legislation has never reduced crime in this country," Reid told the Jamaica Observer on Wednesday.

Reid was responding to Tuesday's announcement by Prime Minister Andrew Holness in Parliament that legislation would be brought to amend the penalty for murder.

"My thoughts on the matter, though not yet finalised, but the thinking is that we should give 30 years minimum for murder. The minister of justice has been directed to bring forward these changes immediately," Holness said, adding that his Administration is "very serious about murders".

Presently, under the Offences Against the Person Act, people can be sentenced to death or life imprisonment for murder. If sentenced to life imprisonment, a convict must serve a minimum 15 years before eligibility for parole. There have been no executions since February 1988.

"Why doesn't the Government…put its feet down and step out and take charge instead of affecting legislation and fettering the hands of judges when this is not the solution?" Reid asked. "If I am a criminal and I know I am going to get 30 years in prison — free, no work — then wait, I am going to commit more murders. Is a free place I am going, free food, free doctor, free ride to court, 30 years' free living, then what is the incentive for me not to commit murder?"

El Salvador authorities in August this year reported a decrease in the number of murders and violent deaths, the fruit, they said, of work and strategy by the Government since the implementation of a Territorial Control Plan in June 2019 and the frontal fight against gangs since March last year. Those strategies, according to the authorities, allowed for a dramatic reduction in homicides, femicides, disappearances, robberies, car thefts, and other high-impact crimes that the Salvadoran population suffered for many years. In August the police there reported the arrest of 50,272 gang members.

Reid, in arguing that amendments to legislation have never resulted in a reduction in crime in Jamaica, said the Government should consider the ripple effects of any such action on other pieces of legislation, the pockets of taxpayers, the prison system itself, and the courts. Furthermore, she said the prime minister was not clear in his statement.

"Is he saying if the person makes a plea, is he going to get 30 years minimum? I am not understanding what the prime minister is saying; is it a minimum mandatory? Or a minimum 30 years before parole? And if so, what is the discretion the judge would have?" she questioned.

"If a man takes a plea for murder, is the amendment going to affect the Criminal Justice Administration Amendment (plea bargaining) Act? So, taxpayers' money will now hold this person in prison for 30 years, whether 30 years minimum mandatory or 30 years before parole?" the attorney queried, further pointing out that the Parole Act will also be affected.

The inadequacies of prison facilities, she said, also cannot be overlooked.

"The prisons in Jamaica, even though they may say hard labour, there is nowhere and no provision in this country for the prisoners to do hard labour, so they will not even be making a contribution to society even to say that they are working, and you could see that out of the work they are doing they are making a contribution to society. And do we have enough facilities to hold these prisoners inside for 30 years when Jamaica is a murder capital; where is the space to hold them?" she contended, adding that it would be a further cost to citizens when prisoners died to bury them.

Senior defence attorney Lloyd McFarlane, in noting that various administrations over time have tweaked legislation dealing with the punishment for murder in attempts to stem the tide, said the latest announcement is another return to the drawing board.

"Our Parliament has a right to set such sentences because they have been doing it for years and our elected parliamentarians have a right to say that there is to be a minimum before you are eligible for parole. I can have no quarrel with that if they move it from 15 to 30 years because it is for our Parliament to make it clear that they regard these matters as serious and the sentence must be serious because, as I said, in Jamaica, life [in prison] has never meant life. So, they are coming closer in a sense to life meaning life," McFarlane noted.

The senior attorney said while the Parliament passes laws insisting on stiffer penalties, as is their right given Jamaica's "atmosphere of criminality", he had an issue with the fettering of the discretion of judges "in circumstances where a lot of injustice is going to be done".

Defence attorney Alexander Shaw, weighing in on the discussion, said while he understood the urgency of the situation, the Government should proceed with caution.

"I cannot disagree because, as a practitioner, I also have to bear in mind that Jamaica is a high-crime society and murders have become the norm. When we speak of criminality, we have a high murder rate and if you take someone's life and you are convicted by an impartial court, then 30 years is really a reasonable time for you to spend in custody because the other person's life was taken away. However, we have to have the discussion, I believe, in a wider context because the conviction rate in terms of murder is less than 10 per cent because of the investigative capacity of the police," he noted.

"So, in introducing new legislation or legislative reform we have to ensure that we improve the investigative capacity because, if not, introducing the minimum becomes so much useless if it is we are not reaping the convictions. I do understand the position of our legislators because we are in a state of decadence and something has to be done," Shaw pointed out.

Noting that particular care should be taken with the introduction of minimum sentences the attorney said, "Sometimes persons want to go to trial instead of taking a guilty plea, so I support the minimum if you are convicted after trial, but if you intend to plead guilty then the plea bargain legalisation should still be utilised.

"If you intend to plead guilty I believe you should benefit from the plea bargain legislation, because you don't want on the one hand to be piling up the courts with more persons wanting to go to trial instead of pleading guilty because there is no advantage to pleading guilty. The minimum of 30 years should only apply if you are convicted after a trial," he added.

Plea bargain arrangements are slated for review by a joint select committee of Parliament.

Police Commissioner Major General Antony Anderson on Wednesday said roughly 1,000 inmates are released from prison each year. He said of that number 42 per cent will return to prison, most after committing a more violent crime.

Alicia Dunkley-Willis

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