Stephen VasciannieGIVEN JAMAICA'S extraordinarily high murder rate, it is understandable that the Government is contemplating the reinstitution of the death penalty.
Even if some members of the Cabinet have personal reservations about this form of punishment (and they say that they do), the Government is hard-pressed to reflect majoritarian sentiments on this issue.
For the majority, the issue seems quite clear: the death penalty is an important component in the State's fight to return the streets of Jamaica to something resembling normal life.
In response, various opponents of the death penalty raise points that are worthy of careful consideration. Almost invariably, the first point is that the death penalty is not a deterrent. This perspective is often advanced with certainty, as if it is a law from the natural sciences: "let no one fool you, the death penalty is not a deterrent." Sometimes, adherents of this iron law will add that "studies show that the death penalty is not a deterrent."
Advocates of this position will also point out that some societies without the death penalty have lower murder rates than those with the death penalty, and that societies that have changed from the death penalty to life imprisonment show no marked increase in the murder rate following the abolition of the death penalty.
I have serious doubts about this line of analysis. In the first place, it is difficult to understand why the death penalty would not be a deterrent to some people. To be sure, there will be a category of persons, hardened by life and by improper socialisation, who will show no concern whatsoever for the prospect of execution in contemplating murder; but, there will, I believe, be others who are influenced by the fear of death on the gallows. We may say that this latter category regards the death penalty as a deterrent.
Secondly, I wonder how particular studies may actually prove that the death penalty is not a deterrent. If the studies are undertaken on a cross-national or cross-cultural basis, it will be almost impossible to single out, in a conclusive manner, the impact of the death penalty in determining the murder rate: surely, the relatively low level of murder in, say, the Scandinavian countries has more to do with wider social and cultural considerations than it has to do with the presence or absence of the death penalty as the ultimate sanction.
Similarly, if we examine the impact of the death penalty as a matter of time series analysis, the results may not be conclusive -- or will certainly not be as conclusive as some opponents of the death penalty posit. In Time Period A, the murder rate may be high for a wide range of factors. Then the death penalty is abolished, and in Time Period B, the murder rate falls below that in Time Period A. This really tells us about changes in a number of social factors, of which the absence of the death penalty may (or may not) be one. In itself it does not conclusively establish the place of the death penalty in influencing the murder rate.
In view of such arguments, another line has been taken by some persons who maintain that the death penalty is not a deterrent. They argue that it is not the death penalty which is the deterrent, but rather it is the risk of being caught by the police and sentenced for the crime that really deters some prospective murderers. This argument is often presented ex cathedra, and we are left to figure out exactly how the analyst knows that the risk of capture is the real deterrent. This argument also lacks cogency because it does not indicate why the prospective murderer would be influenced by the risk of capture, but not by the risk of execution.
More generally, even if we assume, arguendo, that the death penalty is not a deterrent, this does not necessarily mean that the death penalty should be abolished. Many Jamaicans take the view that the death penalty may be supported as a means of ensuring justice: simply put, the sentiment is that the person who commits capital murder should pay fully for that act. There is, of course, a thin line between justice and revenge in this situation, but the majoritarian perspective seems to be that retribution is an appropriate objective of punishment in the present circumstances in Jamaica.
Is the death penalty inhuman or degrading punishment or treatment, the kind of thing that is prohibited by Section 17 of the Jamaican Constitution? If we rely on those who drafted the Jamaican Constitution, then, clearly the death penalty is not perceived as inhuman or degrading punishment, for Section 14 of the same document preserves the possibility of executions when conducted in accordance with safeguards for due process.
But what if we examine the question from first principles? There is a strong case for suggesting that the death penalty is indeed inhuman and degrading, and the actual method of execution preferred in Jamaica seems to emphasise the degrading character of the punishment.
This perspective, however, does not lead us to the conclusion that the death penalty should be abolished in all cases. The people of Jamaica may well take the view that even if the death penalty is a form of inhuman and degrading treatment, we are prepared to live with that, bearing in mind the circumstances that prompt execution.
PRATT AND MORGAN
The Jamaican Government has maintained that the decisions of the Privy Council in Pratt and Morgan and in Neville Lewis amount to an abolition of the death penalty. One may challenge this by suggesting that it is possible for the State to complete the process of appeals in capital murder cases within five years; it is also possible to argue that the real difficulty is to be found in the slow processes of the Jamaican judicial system. But, to be fair, this approach does not fully acknowledge that there is an external component to the appellate process, the Inter-American Commission, and that this Commission seems inclined to disregard the time constraints faced by the Jamaican authorities.
In the end, therefore, the decision of the Jamaican Government to follow the Barbadian lead with a constitutional amendment designed to overturn the impact of the Pratt and Morgan decision cannot be regarded as irrational. If Jamaican society decides to retain the death penalty, then it cannot be right for this approach to be stymied by either the Privy Council or the Inter-American Commission.
On the other hand, if the constitutional amendment is carried, I hope the Jamaican authorities will move quickly to reinstate the country among the parties to the First Optional Protocol to the International Covenant on Civil and Political Rights. The death penalty is not the only human rights matter that arises in our context, and we should seek the benefits of international advice on both death penalty issues and on other matters of human rights.
Stephen Vasciannie is Professor of International Law, University of the West Indies, Mona.
