THE human rights group Jamaicans for Justice (JFJ) has officially added its voice to those criticising the proposed minimum sentencing guidelines for murder.
According to JFJ, the proposals now on the table are excessive and the minimum sentence needs to be set at a point to allow for negotiations on a case-by-case basis.
Among the proposed changes as set out in several pieces of related legislation now being reviewed by Parliament is a mandatory minimum sentence of 50 years for capital murder.
But executive director of JFJ Mickel Jackson says the group does not support mandatory minimum sentences of this level.
"I want to be very clear that JFJ is not against mandatory minimum; we're not against it in principle…we are against it being manifestly excessive when there is no judicial discretion. Because from our perspective and we have said this publicly that I want to reiterate it…we do believe that the separation of powers is being violated in that context when we tie the judges' hands to an extent that they cannot consider the unique circumstances of each case," said Jackson.
Making a submission on Tuesday to the joint select committee examining the Criminal Justice (Administration) (Amendment) Act, 2023; The Offences Against the Person (Amendment) Act, 2023; and The Child Care and Protection (Amendment) Act, 2023, Jackson argued that while the rationale for high mandatory minimum sentencing may at face value seem reasonable, research by the JFJ has shown that this does not necessarily achieve the intended goals.
"So I think we have to be looking again at the implications for human rights. For example, prison overcrowding, other breaches of human rights that may occur and unjust sentencing for vulnerable offenders," said Jackson.
According to the JFJ head, while there is a range of offences, the proposals being made do not sufficiently recognise that some things can be so egregious that it sends the signal that this particular act is something that the country is not standing for.
"Everything manifested is excessive with what is being proposed and…we suggest that we can lower some of the levels where we say, yes, murder is wrong, but you start, for example, at 25 years," she said, suggesting that in a particular case, based on aggravating factors, then a higher sentence can be considered.
Jackson argued that the proposed minimum sentencing of 20, 35, 45 and 50 years are too close together and will not achieve the desired outcome.
"When you look at the manifestly excessive mandatory minimum, in our opinion when you have, for example, 50 years for capital murder, 45 years for non-capital, what is the distinction with just five years in between them? What exactly are we saying to the public that offences relating to capital is something that is so egregious that it needs a higher level," said Jackson.
She suggested that because the nature and gravity of murders has a wide band, it's better to "start at a low threshold for the less egregious, to life imprisonment without parole for the serious egregious acts… save the longer sentences for the most heinous crimes".
The proposed changes being considered by the members of the joint select committee include amendments to the Offences Against the Person Act (OAPA), the Criminal Justice (Administration) Act and the Child Care and Protection (Amendment) Act, 2023.
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.
Under the Child Care and Protection (Amendment) Act, 2023, it is being proposed that children convicted of murder serve a mandatory sentence of 20 years in prison before becoming eligible for parole.
Responding to Jackson, chairman of the joint select committee, Delroy Chuck questioned that in the instance of capital murder what would be wrong with, "A very stern, strong high mandatory minimum because the alternative is death and most persons who committed capital murder would be considered enemies of society.
"The families of the victims, and many Jamaicans would want to see that person out of the way, preferably, they say, by death…But what would be wrong to say the mandatory minimum, as they do in many countries, is life without the possibility of parole?"
According to Chuck: "We are saying life, but you serve at least 40 years or 50 years. So in other words, what we're saying, we have to send the signal, the legislature has to send the signal that this is the appropriate remedy to ensure that that person leaves and never has the possibility of returning to the society to be a menace".