Stephen VasciannieAT LEAST in a political sense, Senator Ossie Harding, Q.C., is a brave man. Two Fridays ago, in view of the present discussions concerning the recent Privy Council ruling on Neville Lewis et al, he introduced a resolution in the Senate concerning the death penalty. This is not a resolution calling for a reconsideration of Government perspectives on Neville Lewis and others in his situation; nor is it a resolution calling for a debate on the circumstances in which the death penalty may be imposed in Jamaica.
Rather, it is a resolution that calls upon the Government to "sign, ratify and accede to the Second Optional Protocol to the International Covenant on Civil and Political Rights and in furtherance of so doing take all necessary steps with all due speed to give effect to it". In effect, the Senator is calling for the Government to abolish the death penalty in Jamaica, speedily and completely.
In a country which is literally under the gun, in which murder is a daily occurrence, and in which over 700 people have lost their lives since January, can this resolution make any sense? Owing, at least in part to our criminal realities, and also to the inertia of history, the vast majority of Jamaicans continue to support the death penalty -- and, in many cases, feel a marked sense of frustration that the ultimate sanction has not been carried out against convicted murderers since the late 1980s.
This consideration, on its own, will almost certainly drive Senator Harding's resolution into the footnotes of Hansard; but the Senator persists, and does so, it must be said, with a certain degree of unflappability. What arguments, you may wonder, does the Senator bring in support of his resolution? On the face of the resolution, three main points emerge:
It has never been determined that capital punishment is an effective deterrent to the commission of murder.
There is a worldwide trend towards "more humanitarian treatment and punishment of offenders". Whereas in 1979, 18 countries had abolished the death penalty for all crimes, this number grew to 38 in 1989 and had reached 68 States by June 1999.
There is some degree of institutional support for abolition. In addition to the views of some States, as reflected in the General Assembly of the United Nations, the Central Committee of the World Council of Churches has also declared its "unconditional opposition" to the death penalty, and has called for action to achieve worldwide abolition.
Death as
deterrence
How convincing are these arguments? Taken on their own terms, they suggest, at most, that from the perspective of humanitarianism, one might regard abolition as an option for some States, but they do not strike me as particularly cogent in themselves.
Take, for example, the first point on deterrence. True, there may well be no empirical basis, from particular societies, to conclude that capital punishment is an effective deterrent against murder. But what Senator Harding now needs to demonstrate is how one could go about gathering decisive evidence on this point.
Consider Society A, which has the death penalty in Year 1. It then abolishes the death penalty in, say, Year 5. Clearly, we cannot just compare the murder statistics in Year 1, as against, say, Year 5, in order to determine whether the abolition of capital punishment has led to an increase in the murder rate. This is so because there may well be other factors (having nothing to do with capital punishment) that have influenced the murder rate in Society A, in Year 5, as against Year 1.
Similarly, for Senator Harding to maintain that capital punishment is not a deterrent, he cannot simply argue that Society A, which has abolished capital punishment, has a lower rate of murder than Society B, which has retained the death penalty. Again, such a comparison would only be decisive if Societies A and B were both subject to the same set of socio-political and economic circumstances. This, we know, does not happen in the real world, so studies on the comparative impact of the death penalty in different societies seem to be inadequate to support the Harding thesis.
More generally, abolitionists now all sing from the same hymn book on the point. They assert that "the studies" do not suggest that the prospect of the death penalty is a deterrent, but, the actual terms of these studies are rarely presented. From a purely subjective perspective, it seems to me that the prospect of being put to death must cause some possible murderers to forego murder as an option; and from this starting point, I believe the onus remains on the abolitionists to show that the deterrence argument has no value.
No globalisation
The second point in Senator Harding's resolution -- concerning the worldwide increase in countries abandoning the death penalty -- indicates that several countries have been convinced by the abolitionist perspective.
Notice, however, that this argument really has little bearing on how any one society may view the death penalty debate. Even if the vast majority of States opposed death sentences, this would not, in itself, be decisive.
What is more telling must be the views of persons who, in their own country, are subject to the risk of murder, and who have considered whether or not they wish the death penalty to remain. Majority sentiment by States -- and even the increase in support for abolition -- might be a broad guide to trends in State opinion, but each country must determine the issues of principle concerning the death penalty on its own. This is not an area for the free play of globalisation, one could say.
Similar considerations apply to the third point, concerning institutional support for abolition. Though it may be true that the World Council of Churches exercises some moral influence over member churches and individuals, that body needs to explain why the issue of capital punishment -- a matter of profound impact in each society -- must be extracted from national boundaries and subjected to a broad international conclusion. At what stage did individual X, fearing brutal murder, have a say in the deliberations of the World Council of Churches on this point?
Senator Harding is to be commended for putting the death penalty on the agenda, even in the face of hostile social circumstances. I hope the Senate will take up his challenge, and that there will be a substantial debate on the question in the near future. Nontheless, bearing in mind the parlous state of the economy, the police force, the prison system, and the spectre of murder at many corners, the Senate and people of Jamaica may hardly have the time for Harding.
Stephen Vasciannie, an attorney-at-law, teaches at the University of the West Indies.
